Richard Brown & Son C. Co. v. Bambrick Bros. Const. Co.

• Citation: 150 Mo. App. 505,131 S.W. 134
• Parties: RICHARD BROWN & SON CONTRACTING CO. v. BAMBRICK BROS. CONST. CO.
• Decision Date: 01 October 1910
• Court: Missouri Court of Appeals

131 S.W. 134

150 Mo. App. 505

RICHARD BROWN & SON CONTRACTING CO. v. BAMBRICK BROS. CONST. CO.

St. Louis Court of Appeals. Missouri.

October 1, 1910.

1. PLEADING (§ 64)—PETITION—ALLEGATIONS OF DAMAGE—DISTINCT CAUSES.

While separate counts of a petition which state distinct causes of action must each be complete in itself, in an action on an entire contract, several breaches constituting but one cause of action may be alleged in one count, though they afford different elements of damage.

2. PLEADING (§ 433)—SUFFICIENCY OF PETITION AFTER VERDICT.

Where a petition is not demurred to, it is sufficient after verdict if, with all reasonable inferences in its favor from the facts alleged, it advised defendant with reasonable certainty as to the cause of action relied on so as to bar another action for the same subject-matter.

3. PLEADING (§ 433)—SUFFICIENCY OF PETITION AFTER VERDICT.

In an action for breach of a contract, by which plaintiff agreed to grade defendant's lot for which it was to receive 23 cents per yard of dirt removed, according to an engineer's estimate, by refusing to permit plaintiff to proceed further after he had excavated 1,592 yards, the first count of the petition alleged, in the form of a separate cause of action, defendant's refusal to pay the balance due for the work already done, and a second count alleged, in the form of a separate cause of action, the facts essential to recovery for loss of the profits by refusing to permit plaintiff to continue the work, but did not allege that plaintiff agreed to excavate any particular number of yards of dirt or the price to be paid therefor. The entire petition, however, showed that plaintiff agreed to remove the dirt down to the rock for 23 cents a yard, settlements to be made on the terms of the contract, defendant's refusal to permit plaintiff to proceed after it had excavated 1,592 yards, and that, if defendant had not breached its contract, plaintiff would have removed 30,000 yards in addition to the amount removed, and would have made 3 cents profit on each yard, which it was prevented from removing, causing a loss as stated. Held, that the petition really alleged only one cause of action for two breaches of an entire contract, and, not having been demurred to after verdict, sufficiently alleged a right to recover for loss of profits, though the purported second count did not allege that plaintiff agreed to excavate any number of yards or the price of the excavation, since those facts appeared by reasonable inference from the whole petition; all reasonable inferences going to support the petition under such circumstances in view of Rev. St. 1899, § 629 (Ann. St. 1906, p. 652), requiring a pleading to be liberally construed with a view to substantial justice, section 676 (page 691) requiring the court to distinguish between form and substance in construing Code provisions, and section 659 (page 679) directing the court to disregard any defects in pleadings not affecting the substantial rights of the adverse party.

4. CORPORATIONS (§ 448)—ACTIONS—RIGHT TO SUE IN CORPORATE NAME.

While a contract made by promoters for the benefit of the corporation thereafter formed is a new contract when subsequently adopted by the corporation, requiring a sufficient consideration, an excavation contract made by promoters became a valid contract of the corporation, where it adopted it after its organization and partly performed the contract and received part of the stipulated price of the work from the other party, so that the corporation was entitled to sue thereon for its breach.

Appeal from St. Louis Circuit Court; William Kinsey, Judge.

Action by the Richard Brown & Son Contracting Company against the Bambrick Bros. Construction Company. From a judgment for plaintiff, defendant appeals. Affirmed.

T. J. Rowe, Henry Rowe, and Thomas J. Rowe, Jr., for appellant. Claud D. Hall, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff as a result of a breach of contract. Plaintiff recovered, and defendant appeals.

Both plaintiff and defendant are incorporated companies. Plaintiff conducts the business of excavating and moving earth, while defendant owns and operates a stone quarry. It appears the parties entered into a written contract of date October 10, 1905, whereby plaintiff agreed to grade defendant's lot of ground at Twenty-Second and Florissant avenue in St. Louis "down to the rock," and dump the clay into a quarry hole mentioned therein, for which it was to receive from defendant 23 cents per cubic yard on monthly estimates to be made by an engineer, and that 15 per cent. of the amount earned was to be retained by defendant until the work was completed to the satisfaction of the engineer. Each party agreed to pay one-half the cost of the engineer's services and abide by his decisions. About a week thereafter, plaintiff commenced the work of grading and moving the dirt and continued until the 24th day of November, 1905, when defendant suspended operations, and refused to permit plaintiff to proceed further therewith. At the time the work was suspended and plaintiff forbidden to proceed, 1,592 cubic yards of earth had been excavated by it as estimated by the engineer. On this amount defendant paid to a subcontractor on plaintiff's order $270.80, but declined to pay plaintiff the balance due therefor. In this suit plaintiff recovered the balance due it at 23 cents per cubic yard for removing the dirt mentioned and recovered further several hundred dollars by way of profits which it lost because of defendant's breach in abruptly forbidding and preventing it from completing the contract.

The first point made for a reversal of the judgment is to the effect that the second count of the petition on which the loss of profits was recovered is insufficient to support the judgment. There is really but one count in the petition when the matter is considered with respect to the substance, though the pleader seems to have proceeded as if he were declaring upon two separate causes of action in distinct counts. The argument directed against the sufficiency of what purports to be a statement of the second cause of action is that this paragraph of the petition omits to state that plaintiff agreed to excavate 30,000 yards, or any other number of yards, of dirt, and there is no averment therein of the price at which the excavation was to be made. If we are to consider the last or second paragraph of the petition alone, the argument directed against it is sound. But in truth and in fact there is only one cause of action stated in the petition, for, though there are separate breaches averred, the first, to the effect that defendant refused to pay plaintiff for removing the dirt, as stated in the first paragraph, and, second, the breach whereby defendant entailed a considerable loss of profits upon plaintiff, the two breaches together constitute but one cause of action. In suits on entire contracts, such as this one, several breaches thereof constitute but one cause of action, and may be set forth in one count, though they afford different elements of recovery or damage. Such is the rule of pleading which universally obtains, as we understand it. 4 Ency. Pl. & Pr. 941; Smiley v. Deweese, 1 Ind. App. 211, 27...