Pickett v. School Dist. of Kansas City

• Decision Date: 22 May 1916
• Docket Number: No. 11890.,11890.
• Citation: 186 S.W. 533,193 Mo. App. 519
• Parties: PICKETT et al. v. SCHOOL DIST. OF KANSAS CITY (KANSAS CITY SOUTHERN RY. CO. et al., Interveners).
• Court: Missouri Court of Appeals

186 S.W. 533

193 Mo. App. 519

PICKETT et al. v. SCHOOL DIST. OF KANSAS CITY (KANSAS CITY SOUTHERN RY. CO. et al., Interveners).

No. 11890.

Kansas City Court of Appeals. Missouri.

May 22, 1916.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

"To be officially published."

Suit by John G. Pickett and R. J. Sexton against the School District of Kansas City, in which the Kansas City Southern Railway Company and the Sternberg Coal & Mining Company intervened. From the judgment, plaintiffs and the railway company appeal. Judgment affirmed.

Cyrus Crane, of Kansas City, for Kansas City Southern Ry. Co. McVey & Freet, of Kansas City, for Sternberg Coal & Mining Co.

TRIMBLE, J.

The plaintiffs, Pickett and Sexton, doing business under the name of the Best Coal Company, furnished, under contract, a large amount of coal in carload lots to the Kansas City school district. The coal was mined by the Sternberg Coal & Mining Company, which sold it to the Best Coal Company for delivery to said school district. The coal was transported to Kansas City by the Kansas City Southern Railway Company and the freight thereon amounted to $490.29. A controversy over the coal arose between the school board and the Best Coal Company, and the board refused to pay. This left the Best Coal Company owing the railroad the freight above mentioned and also owing the Sternberg Coal & Mining Company the sum of $2,981.98 for the coal. The Best Coal Company became wholly unable to pay either claim, and on February 7, 1914, it executed and delivered to the railway company a written assignment reciting the delivery of certain carload shipments of coal to the district amounting to "more than $4,000"; that the railway company had hauled the coal; that the Best Coal Company has "agreed that as security to said railway company for the payment of said charges it will assign a sufficient portion of said debt to pay the claim of the railway company." Therefore, the Best Coal Company, for $1 and other valuable considerations, assigned to said railway company "any and all sum or sums of money now due or to become due to the Best Coal Company from the school district of Kansas City to the amount of four hundred and ninety dollars and twenty-nine cents ($490.29)." The railway company presented the assignment to the school board, but it refused to accept or consent to the assignment, as it was denying all liability on the Best Company's claim. Thereafter, on February 17, 1914, plaintiffs, Pickett and Sexton, or the Best Coal Company (being one and the same), brought suit against the school board for $5,300 for coal furnished. The school board filed a general denial together with a counterclaim for $3,766.96 on account of short weights. On October 9, 1914, plaintiffs, Pickett and Sexton, executed and delivered to the Sternberg Coal & Mining Company a written assignment of all interest in the account sued on in the case against the school board, to secure to the Sternberg Company payment of the said sum of $2,981.98 with interest from April 1, 1914, being the amount of money owed for coal sold to the district, "with full authority to proceed to the collection of said account in such manner as may seem best to the said Sternberg Coal & Mining Company. Compromise of said case shall not be made without the approval of the said John G. Pickett and R. J. Sexton. When the account is paid, any surplus over and above the amount of the bill recited shall be paid to John G. Pickett and R. J. Sexton, assignors."

Immediately upon obtaining this assignment, the Sternberg Coal & Mining Company filed a motion in the suit against the school board to be substituted as party plaintiffs in the place of Pickett and Sexton, and also a motion for the appointment of a referee. The motion to be substituted as plaintiffs does not seem to have been formally acted upon. Section 1924, R. S. Mo. 1909, provides that the court may allow the substitution to be made, or the action may be continued in the name of the original party if the transferee will indemnify him against costs. If no application for indemnity is made by the party making the assignment, it is regarded as waived. Asher v. St. Louis, etc., R. Co., 89 Mo. 116, 1 S. W. 193. The trial court appears to have regarded the substitution unnecessary under the statute, since the plaintiffs were willing for the case to continue as it was. At any rate, the case continued on in the name of Pickett and Sexton as plaintiffs, but a referee was appointed as prayed for by the Sternberg Coal & Mining Company in its motion to that effect. The case was thereafter conducted by the attorney for plaintiffs who had brought the suit and by the attorney who had appeared for the Sternberg Coal & Mining Company and filed the motions to be substituted as plaintiffs and for a referee. At the beginning of the hearing before the referee, the assignment to the Sternberg Coal & Mining Company was offered in evidence, and the offer was objected to by the school board, whereupon, the attorney for plaintiffs remarked, in substance, that it did not concern the defendant, as it was a matter between the plaintiffs and the Sternberg Coal & Mining Company only; the assignment having been made by the plaintiff to the Sternberg Company, and if any judgment was obtained it would really belong to the latter. During the course of the hearing, the school board introduced in evidence the assignment made by plaintiffs to the railway company. The evidence shows that, up until this time, the Sternberg Coal & Mining Company had had no notice whatever of this assignment.

On January 29, 1915, the referee made his report finding for plaintiffs, on the account sued on, in the sum of $4,472.78 and for defendant, on its counterclaim, in the sum of $1,214.09, being a net finding for plaintiffs in the sum of $3,258.69. This report was confirmed by the court on February 13, 1915, and judgment was rendered thereon, which, with interest, amounted to $3,454.21.

The school board being about to pay over the amount of the judgment, the Kansas City Southern Railway Company brought an injunction suit seeking to have the claim under its assignment enforced out of the amount due from the school board and to have said claim declared, in equity, to be prior and superior to the claim of the Sternberg Coal & Mining Company. Thereupon the school board paid the money into court in the case wherein the judgment against it had been rendered, and was discharged from all further liability.

On February 20, 1915, the Sternberg Coal & Mining Company filed its motion, or petition, duly verified, in which it set up the facts with reference to the furnishing of...