Pickering v. Mississippi Valley Nat'l Tel. Co.

• Decision Date: 31 March 1871
• Citation: 47 Mo. 457
• Parties: ESROM O. PICKERING, Defendant in Error, v. THE MISSISSIPPI VALLEY NATIONAL TELEGRAPH COMPANY, Plaintiff in Error.
• Court: Missouri Supreme Court

47 Mo. 457

ESROM O. PICKERING, Defendant in Error,

v.THE MISSISSIPPI VALLEY NATIONAL TELEGRAPH COMPANY, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1871.

Error to St. Louis Circuit Court.

C. H. Krum, for plaintiff in error.

I. The third and fourth counts of the petition do not state facts sufficient to constitute a cause of action. (Langford et al. v. Sanger et al., 40 Mo. 160; House v. Lovell et al., 45 Mo. 381) The counts fail to allege performance on his part by the defendant in error of conditions by him to be performed. An averment signifies a positive statement of fact in opposition to argument or inference. (1 Chit. Pl., 8th Am. ed., § 321.) The defendant in error must have averred performance or an excuse for nonperformance. ( Id., § 326.) Performance, or readiness to perform, is not to be inferred; it must be averred. (Hatch v. Peel et al., 23 Barb. 575; Smith v. Brown, 17 Barb. 431; Helen v. Wilson, 4 Mo. 41, 44; Carpenter v. Stevens, 12 Wend. 589.)

II. The first count of the petition contains two causes of action improperly united. ( a) The defect is apparent on the record. No exception to the action of the lower court was necessary to save the point. (Bateson v. Clark et al., 37 Mo. 31.) ( b) Even if the court should hold that answering over waived the objection now complained of, yet an opportunity should be given the plaintiff in error to avail itself of the defect in the record. At the time the demurrer was filed it was the settled doctrine of this court that the objection that causes of action are improperly united in a petition is never waived and may be taken advantage of in arrest of judgment. (McCoy v. Yaeger, 34 Mo. 134; Clark v. Hann. & St. Jo. R.R., 36 Mo. 202; Meyer v. Field et al., 37 Mo. 434; Hoagland v. Hann. & St. Jo. R.R., 39 Mo. 451; Peyton v. Rose, 41 Mo. 257.) ( c) The objections urged against the first count, if tenable, are fatal to the last count.

III. The defendant in error has divided one cause of action into three parts and sued upon each part. The court has found in his favor specially upon each part. All damage resulting to the defendant in error from a failure on the part of the plaintiff in error to perform its contract, is an entirety. Such damage is to be recovered in one suit founded upon one cause of action. “The authorities all agree that where the demand is an entirety, although consisting of several items, if judgment be recovered for a part of it, the judgment is a bar to an action for the remainder.” (Flaherty's Adm'r v. Taylor, 35 Mo. 447.) Now, having reference solely to the first, third and fourth separate causes of action sued upon by the defendant in error, it is clear that he can not have a finding in his favor under the first without such finding operating as a bar to any subsequent finding upon the second and third. (Town of Marlborough v. Sisson, 31 Conn. 332.) The findings and judgment under the first and third causes of action can not be maintained. Under each of these causes of action the defendant in error has a finding in his favor. So that if this judgment is to be sustained, a party to a contract can sue and recover not only the contract price, but may have specific damages for non-compliance by the other party, with certain conditions of such contract during performance.

Isaac T. Wise, for defendant in error.

CURRIER, Judge, delivered the opinion of the court.

The parties contracted together in writing as follows: The defendants agreed to furnish the poles and other material for a telegraph line from Keokuk, Iowa, to St. Louis, a distance of 214 miles. The poles were to be supplied at different points along the Mississippi river bank in the time and manner pointed out in the contract. The plaintiff agreed to distribute the poles from the points where they were to be left and to construct the telegraph line at $40 a mile. Three of the counts in the petition are based upon alleged breaches of the contract on the part of the defendants. The breaches complained of are, in substance, (1) that the defendants neglected and refused to furnish the material for the last fifty-nine miles of the line, thereby breaking off the job and preventing its completion by the plaintiff; (2) that the defendants neglected to furnish the material for the 155 miles actually constructed by the plaintiff, in the time agreed on, whereby, it is claimed, the plaintiff was greatly damaged; and (3) that the defendants had failed to pay the stipulated price for the erection of the 155 miles as they had agreed to do.

The petition was demurred to, but the demurrer was overruled, and the defendants thereupon answered upon the merits, and put in issue the various averments of the petition showing a breach of the contract on the part of the defendants. The plaintiff recovered, and the defendants thereupon moved in arrest, filed their bill of exceptions, and bring the case here by writ of error.

The merits of the demurrer have been argued at length, but they can not be considered in the present attitude of the case. By answering upon the merits, the defendants practically withdrew and abandoned the demurrer, although it may not have been withdrawn in form. A demurrer admitting the facts and an answer denying them are totally inconsistent with each other and can not stand together. As the demurrer admitted the facts, when it was overruled the plaintiff was technically entitled to judgment. The strictly accurate practice in such case is for the overruled party to withdraw his demurrer and plead to the merits, by leave of the court, where he desires to put the facts in issue. These views, I apprehend, are in accordance with the general understanding of the profession and the previous rulings of this court. The point was distinctly passed upon in Reyburn v. Bellotti, 6 Mo. 601; see also Fuggle v. Hobbs, 42 Mo....