Pickel Stone Co. v. McClinton

• Decision Date: 04 November 1913
• Citation: 160 S.W. 833,177 Mo. App. 494
• Parties: PICKEL STONE CO. v. McCLINTON et al.
• Court: Missouri Court of Appeals

160 S.W. 833

177 Mo. App. 494

PICKEL STONE CO. v. McCLINTON et al.

St. Louis Court of Appeals. Missouri.

November 4, 1913.

1. PARTIES (§ 59)—AMENDMENT.

In an action upon the bond of a contractor for the erection of a schoolhouse, originally brought in the name of the school district at the relation of respondent, who was the real party in interest, the petition was properly amended so as to substitute respondent as sole plaintiff in lieu of the school district, under Rev. St. 1909, § 1848, permitting amendments in furtherance of justice by striking the name of any party, etc.

2. PLEADING (§ 420)—AMENDMENT—WAIVER OF OBJECTION.

Defendant cannot complain on appeal of the amendment of the petition, even though it entirely changed the cause of action, where he did not then object but pleaded over and went to trial on the merits.

3. SCHOOLS AND SCHOOL DISTRICTS (§ 86)— BONDS OF SCHOOL CONTRACTORS—ACTIONS— PARTIES.

One having an interest in the enforcement of a bond executed to the state by a contractor for the erection of a schoolhouse, which provided that it "may be sued on at the instance of any materialman," could maintain an action on the bond in his own name.

4. PLEADING (§ 433)—PETITION—DEFECTS— AIDER BY VERDICT.

A petition cannot be attacked after verdict on the ground that it failed to state a cause of action if it alleges a cause of action by reasonable intendment, though not with exactness of pleading.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Action by the Pickel Stone Company against George S. McClinton and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Ferriss, Zumbalen & Ferriss, of St. Louis, for appellant. Lubke & Lubke, of St. Louis, for respondent.

ALLEN, J.

This is a suit upon a contractor's bond for the erection of a schoolhouse in Valley Park school district No. 5, township 44, range 5 east, of St. Louis county, Mo. The bond is executed to the state of Missouri by the defendant, George S. McClinton as principal and his codefendant United Surety Company as surety and is conditioned that defendant McClinton shall faithfully perform his contract for the erection of such building "and shall, as soon as the work contemplated by said contract is completed, pay to the proper parties all amounts due for material and labor used and employed in the performance thereof." And the bond provides that "the same may be sued on at the instance of any materialman, laboring man, or mechanic."

The suit was originally instituted in the name of the said Valley Park school district, at the relation of the respondent, Pickel Stone Company. A demurrer was sustained to the petition upon the ground of lack of capacity of the school district to maintain the action on the bond. Thereupon plaintiff amended its petition by dropping the name of the school district in the caption thereof, as well as the allegation in the body thereof to the effect that the suit was brought to the use and at the relation of respondent Pickel Stone Company, though the word "relator" remains in places in the petition instead of the word "plaintiff." Thereupon the defendant filed its answer to the amended petition, admitting the execution of the contract for the construction of the school building as well as the execution of the bond sued upon, and denied generally the other allegations of the petition as amended.

The cause was tried before the court without a jury, a jury having been waived, resulting in a judgment for plaintiff for the penalty of the bond, to be satisfied upon the payment of $209.98, from which judgment the defendant United Surety Company prosecutes its appeal to this court.

Appellant urgently insists that it was error for the trial court to permit the petition to be amended so as to substitute the respondent as plaintiff in lieu of the school district in whose name the cause was instituted at the relation and for the use of the respondent. Appellant says that, as the suit was originally begun, one beneficiary under the bond, not itself the obligee, attempted to maintain the action for the benefit of another beneficiary, and that, when the school district went out on demurrer because its lack of capacity to sue appeared upon the face of the petition, the respondent could not step in and volunteer itself as a substituted plaintiff.

In support of appellant's contention in this regard, we are cited to early cases of our courts which appear to sustain its position. It serves no useful purpose to review them, however, as the later cases support the action of the trial court in permitting the amendment in question.

Section 1848, Rev. Stat. 1909, is as follows: "The court may, at any time before final judgment, in furtherance of justice, and on such terms as may be proper, amend any record, pleading, process, entry,...