Reed v. Kansas Condensed Milk Company
| Decision Date | 01 March 1915 |
| Parties | J. W. REED, Respondent, v. KANSAS CONDENSED MILK COMPANY, a Corporation, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.
Judgment reversed and cause remanded.
George L. Davis for appellant.
(1) The court erred in admitting testimony of expenses incurred by plaintiff as salesman for defendant, as these were not pleaded. The written contract was the sole measure of liability; the amended petition was for money paid out and expended. The same evidence would not sustain both petitions. Heman v. Glann, 129 Mo. 325. (2) The court erred in admitting plaintiff to amend his petition at the close of all the testimony by setting up a new cause of action. Pruett v. Warren, 71 Mo.App. 84; Hackett v. Van Frank, 119 Mo.App. 648; Heman v. Glann, 129 Mo. 329; Joyce v. Growney et al., 154 Mo. 253. (3) The court erred in not granting defendant's application for a continuance after petition was amended, over defendant's objection, at the close of all the evidence. Tunstall v Hamilton, 8 Mo. 500. (4) The amendment allowed by the court at the close of all the testimony set up a new and distinct cause of action from any cause of action contained in the original petition, inasmuch as the same evidence would not support both petitions. Stewart v. Van Horn, 91 Mo.App. 647; Purdy v. Pfaff, 104 Mo.App. 331.
Yates & Mastin for respondent.
--This suit grows out of a written contract of employment entered into by the parties hereto whereby defendant employed plaintiff for a term of two years from April 1, 1910, as manager at a salary of $ 150 per month; and wherein plaintiff agreed to give all of his time and attention to the management of the business to the exclusion of every other business, and further agreed, on request, to make and deliver a complete and correct account in writing of all moneys received and paid out.
Plaintiff was discharged six months before the end of his term of employment, and he brought this suit to recover the remainder of his salary and also certain sums of money paid out by him in the furtherance of the business.
Originally the petition was in one count only and in it plaintiff prayed judgment for $ 1302.83 on account of salary and expenses from the date of the breach of the contract.
At the close of all the evidence plaintiff, by leave of court, and over the objections of defendant, amended his petition so as to put the petition in two counts wherein $ 900 on account of salary was demanded in the first count and $ 402.83 on account of expenses was asked in the second count. A verdict was returned for $ 900 on the first count and for $ 200 on the second, and defendant has appealed.
On the theory that the original petition was solely for salary due under the contract, defendant claims that the court not only erred in admitting the itemized account of expenses known as Exhibit "B" and attached to the petition, but also erred in permitting the amendment because it set up a new and distinct cause of action. Of course if the matter of expenses were not pleaded, the admission of evidence in regard thereto would be error. And if the amendment resulted in the setting up of a new cause of action, it was error to allow it.
It is quite clear, however, that the original petition explicitly sought two items of recovery, one by way of salary and the other for money paid out for expenses in the prosecution of the business, and alleged "that there is now due and payable from defendant unto plaintiff on account of salary and expenses from the date of the breach of said contract the total sum of thirteen hundred and two dollars and eighty-three cents ($ 1302.83), a correct statement of which account and each and every item thereof is herewith filed and marked Exhibited 'B.'"
The account contained in Exhibit "B" was, therefore, a part of the petition by virtue of section 1832, Revised Statutes 1909. [Combs Com. Co. v. Block, 130 Mo 668, l. c. 679; Whitewater Mercantile Co. v. Devore, 130 Mo.App. 339, l. c. 345.] Hence it cannot be said that the itemized account of the expenses was in admissible because not pleaded.
The original petition containing both matters sued for, it is not easy to see how the amendment of the petition set up a new and distinct cause of action. The amendment did not do this but merely divided the petition into two counts. The expenses, in a sense, were incidental to the contract and apparently are recognized by its terms. However this may be, the worst that can be said of the original petition is that it joined...
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