Reifeiss v. Barnes

• Decision Date: 15 January 1946
• Docket Number: No. 26826.,26826.
• Citation: 192 S.W.2d 427
• Parties: REIFEISS v. BARNES et al.
• Court: Missouri Court of Appeals

192 S.W.2d 427

REIFEISS v. BARNES et al.

No. 26826.

St. Louis Court of Appeals. Missouri.

January 15, 1946.

Motion for Rehearing or to Transfer to Supreme Court Denied February 19, 1946.

Appeal from Circuit Court, St. Louis County; Fred E. Mueller, Judge.

"Not to be reported in State Reports."

Action by M. E. Reifeiss against B. M. Barnes and another to recover money loaned to named defendant for the use and benefit of himself and codefendant. From a judgment of dismissal, plaintiff appeals.

Judgment affirmed.

Douglas H. Jones and Mattingly, Berthold, Jones & Richards, all of St. Louis, for appellant.

Harry A. Frank, of St. Louis, for respondents.

Salkey & Jones, of St. Louis, for respondent Garvey E. Lyons.

ANDERSON, Judge.

This is the second appeal in this case. Our former opinion is reported in 166 S.W. 2d 225. In that appeal we affirmed the action of the trial court in sustaining defendants' separate motions for new trial filed after a verdict and judgment for plaintiff. The petition upon which that judgment was based alleged that on September 24, 1937, defendant B. M. Barnes, for value received, executed and delivered to plaintiff his promissory note, payable on demand, in the sum of $5,500, with 6% interest from date; that said defendant, for good and valuable consideration, endorsed and promised to pay said note, but failed to do so, although demand had been made therefor; that on or about December 9, 1938, defendant Garvey E. Lyons, for a good and valuable consideration, and in consideration of an extension of said note, agreed in writing to guarantee the payment of the principal and interest of said note; that plaintiff, in consideration of said guaranty, extended the note; and that plaintiff demanded payment of defendant Garvey E. Lyons, but that Lyons refused to pay same. Judgment was prayed against both defendants for $5,500 principal, together with interest at the rate of 6% per annum from September 24, 1937, and costs.

After reviewing the evidence introduced under this petition, we held same insufficient to charge defendant Barnes with liability as maker or endorser on the note, or to charge defendant Lyons with liability as guarantor, and we remanded the cause.

When the case reached the circuit court, plaintiff filed the following amended petition:

"Plaintiff, by leave of Court first had and obtained, files this her Amended Petition, and states that defendants are residents and citizens of the County of St. Louis, State of Missouri.

"For her cause of action plaintiff states that on September 24, 1937, for value received, defendants borrowed from plaintiff the sum of $5500.00 and agreed to repay the same on demand together with interest thereon at the rate of six per cent (6%) per annum from September 24, 1937; and that plaintiff gave said sum of $5500.00 in cash to defendant Barnes for the use and benefit of himself and defendant Lyons; that at said time said Barnes was acting for himself and for defendant Lyons and was duly authorized so to do; that at said time the said Barnes as evidence of said loan executed and delivered to plaintiff a certain negotiable promissory note, by the terms of which he promised to pay to the order of plaintiff the sum of $5500.00, together with interest thereon at six per cent (6%) per annum from September 24, 1937, which note said defendant also endorsed; that thereafter defendant Garvey E. Lyons, as evidence of said loan and of his promise to pay same, did agree to guarantee and pay the said obligation of defendant Barnes.

"Plaintiff states that she has many times demanded payment of said loan and interest thereon from said defendants but that they have failed and refused to repay said loan.

"Wherefore, plaintiff prays judgment against defendants and each of them in the sum of Fifty Five Hundred ($5500.00) Dollars, together with interest thereon at six per cent (6%) per annum from September 24, 1937 until paid, and for her costs herein expended."

When the cause came on for trial on this amended petition counsel for defendants objected to the introduction of any evidence in the case on the ground, among others, that the amended petition was a departure from the cause of action alleged in the original petition. This motion was by the court sustained, and a judgment of dismissal entered. From this judgment plaintiff appealed, contending that there is no departure in this case. To this we cannot agree. Under the law in this state, the amended petition in this case changed the nature of the cause of action, and substituted a new cause of action for the one alleged in the original petition. This same problem was before the Springfield Court of Appeals in Mineral Belt Bank v. Elking Lead & Zinc Co., 173 Mo.App. 634, 158 S.W. 1066, 1069. In disposing of the case the court said:

"But plaintiff should no more be allowed, having elected to sue on the note, to abandon that suit and proceed on the theory of a contract implied by law for money had and received or money paid for defendant's use and benefit than to first sue for the conversion of a horse and, failing, attempt to sue by an amendment on an implied promise. In each instance there would clearly be a substitution of a new cause of action.

* * * * *

"The question in this case is whether a petition which counts solely on the execution and failure to pay a promissory note may be so amended as to count solely on money had and received or money paid for the use and benefit of the defendant. Viewing this question in the light of the tests laid down in the cases above cited, it is obvious that the evidence which would support the cause of action on the note would fall far short of supporting the cause of action on the money count. One seeks to make defendant liable for a failure to perform a certain expressed written contract, providing for performance within a certain time and for the payment of a certain rate of interest. The other seeks to hold him on a contract implied in law when the evidence must necessarily show that the defendant received the benefit of certain money, which, with the legal rate of interest, if liability is established, is lawfully due the plaintiff. To sustain the cause of action on the note, the introduction of the same and proof of its execution and an unpaid balance, in the absence of a verified denial, is sufficient to sustain a judgment. On the money count, a default judgment would not stand unless the plaintiff had shown that the money was advanced, that the money was used for the benefit of the defendant, and was borrowed by some one having authority to represent and bind the defendant. Nor would the measure of damages be the same in the one action as in the other, even though the amount claimed to be due and unpaid should be found to be the same, because the note set up in this case bore interest at the rate of 8 per cent. from its maturity (90 days after date) and provided that, if the interest was not paid when due it was to become principal and bear the same rate of interest, while should a recovery be had on the money count, the interest collectible would be only the rate prescribed by the statute, and that only from the date the...