Rundelman v. John O'Brien Boiler Works Co.

• Decision Date: 02 December 1913
• Citation: 178 Mo. App. 642,161 S.W. 609
• Parties: RUNDELMAN v. JOHN O'BRIEN BOILER WORKS CO.
• Court: Missouri Court of Appeals

161 S.W. 609

178 Mo. App. 642

RUNDELMAN v. JOHN O'BRIEN BOILER WORKS CO.

St. Louis Court of Appeals. Missouri.

December 2, 1913.

1. APPEAL AND ERROR (§ 193)—OBJECTIONS TO PETITION—FAILURE TO STATE CAUSE OF ACTION—TIME TO OBJECT.

The objection that the petition does not state a cause of action is available at any stage of the proceedings, even in the appellate court.

2. JUSTICES OF THE PEACE (§ 101) — SUFFICIENCY OF PETITION—OBJECTIONS.

Objection in a justice's court to the reception of any evidence under the petition for failure to state a cause of action merely challenges its sufficiency for a total failure to state a cause of action and cannot fulfill the purpose of a motion to make more definite and certain.

3. JUSTICES OF THE PEACE (§ 91) — PROCEDURE —SUFFICIENCY OF STATEMENT.

The following account sued on in a justice's court:

                  To 51 hrs. work at Belleville, Ill., at 40 cts
                    per hour ......................................  $20 40
                  Received from company .................  $ 7 00
                  Paid out for company paid out .........    3 30
                                                           ______
                  Due company ...........................  $ 3 70
                  Cash ..................................    6 80
                                                           ______
                                                           $10 50
                

—was sufficiently definite and specific to apprise defendant of the nature of the claim against him and to bar another action on the same demand, and hence sufficient to support a judgment for plaintiff.

4. JUSTICES OF THE PEACE (§ 91) — PLEADINGS — CONSTRUCTION.

A very liberal rule prevails with respect to statements filed before justices of the peace, in view of the character of such courts and the fact that they are intended as a forum, where small litigants may obtain redress without the expense of employing counsel.

5. JUSTICES OF THE PEACE (§ 100) — PLEADING —VARIANCE.

It is no more permissible for a party to bring a suit before a justice of the peace on one cause of action and recover on another than it is in a court of record.

6. APPEAL AND ERROR (§ 197)—PLEADING— FORM OF OBJECTION.

A party must interpose timely objection to the admission of evidence outside of the scope of the pleadings, grounding such objection upon such variance and supporting it by affidavit setting forth the respect in which he has been misled, as required by Rev. St. 1909, § 1846.

Appeal from St. Louis Circuit Court; Eugene McQuillen, Judge.

Action by Ferdinand Rundelman against the John O'Brien Boiler Works Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Leahy, Saunders & Barth, of St. Louis, for appellant. F. A. C. MacManus, of St. Louis, for respondent.

ALLEN, J.

This is an action begun before a justice of the peace by filing the following account:

                                  St. Louis, Mo., Aug. 17, 1911
                    John O'Brien Boiler Works Co. to Ferdinand
                                  Rundelman, Dr
                  To 51 hrs. work at Belleville, Ill., at 40 cts
                    per hour .......................................  $20 40
                  Received from company .................. $ 7 00
                  Paid out for company paid out ..........   3 30
                                                           ______
                  Due company ............................ $ 3 70
                  Cash ...................................   6 80
                                                           ______
                                                           $10 50
                  Room rent ........ $2 00
                  Helper O'Brien ...  1 00
                  Car fare .........    30
                                     _____
                                     $3 30  Wages ..................  $20 40
                                            Moneys rec'd ...........   10 50
                                                                      ______
                                            Balance due ............  $ 9 90
                

Plaintiff prevailed in the justice court, and defendant appealed to the circuit court, where the cause was tried before the court without a jury, a jury having been waived, resulting in a judgment for plaintiff for the balance claimed to be due, to wit, $9.90. From this judgment defendant has prosecuted its appeal to this court.

I. Appellant contends that the statement filed before the justice does not measure up to the requirements respecting such statements, and is insufficient. With regard to this question we may say, in the first place, that the case is not one where the defendant moved below to make the account more definite, properly saved its exceptions to the overruling of such motion, did nothing to waive the point, and brought that question here for us to review. No such motion was here made.

It is true, however, that the defendant interposed an objection to the introduction of any evidence in the case "for the reason that the petition filed in the justice court is not sufficient under the law to constitute a cause of action," which objection was overruled; defendant excepting. Such objection, however, merely had the effect of challenging the sufficiency of the account as for a total failure to state a cause of action under the rule respecting the sufficiency of statements before justices of the peace. Consequently it does not affect the question on appeal, for, if the statement is in fact fatally deficient, such deficiency may be taken advantage of at any stage of the case, even in the appellate court.

Such objection cannot fulfill the office of a motion to make the account more specific and definite. Jarrett v. Mohan, 142 Mo. App. 29, 126 S. W. 212.

The question, then, before us in this regard is whether the account filed is fatally defective and insufficient to support the judgment. The rule is well established that the test of the sufficiency of a statement filed before a justice of the peace is that it must be sufficiently definite and specific to apprise the defendant of the nature of the claim against him and to operate as a bar to another action on the same demand. As to this numerous cases might be cited, but see Rechnitzer v. Vogelsang, 117 Mo. App. 148, 93 S. W. 326; Fixture Co. v. Baseball Co., 152 Mo. App. 601, 133 S. W. 849.

Tested by this well-known rule, is the statement before us sufficient? It must be conceded that the cases in this state, in which the sufficiency of various statements filed before justices of the peace have been passed upon, are by no means harmonious. Such lack of harmony, however, at least in all of the more recent cases, does not arise because of any conflict as to the rule to be applied in testing the sufficiency of such statements but from the application of the rule to the particular statements under consideration. Appellant relies, in large measure, upon the decision of this court in Rechnitzer v. Vogelsang, supra. There the account under consideration was as follows:

                         St. Louis, 720 Century Bldg., June, 1903
                  Mr. Henry Vogelsang, acct. for Edw. J., 10th and
                                      Olive.
                  To mdse. as per bills ..................  $68 00
                  To mdse. as per bills ..................   11 80
                                                            ______
                                                            $79 80
                  1903.
                  June 9. By cash .................  $5 00
                  June 16. By cash ...............    2 00    7 00
                                                            ______
                                                            $72 80
                

Of this we said, through Goode, J.: "It will be observed that the statement contains no description of the merchandise sold or the dates on which the sales were made. For aught it contains, the goods may have been as well groceries or hardware as stationery, and the dates may have been during any period preceding June, 1903. In fact, the sales occurred on different dates in the year 1899. The statement was insufficient to apprise the defendant of the nature of the claim against him or to bar another action on the same demand. This is true, because there is nothing in it by which the particular merchandise that is the subject-matter of the action can be identified; nothing to show what sort of articles composed the claim, or when they were sold and delivered. Therefore the facts needed for identification are not given."

The statement was held to be insufficient to support the judgment; the following cases being cited in support of such ruling, viz.: Brashears v. Strock, 46 Mo. 221; Swartz v. Nicholson, 65 Mo. 508; Butts v. Phelps, 79 Mo. 302; Boughton v. Railroad, 25 Mo. App. 10; Doggett v. Blanke, 70 Mo. App. 499; Moffett-West Drug Co. v. Johnson, 80 Mo. App. 428; McCrary v. Good, 74 Mo. App. 425. In a later case in this court, viz., Moffet-West Drug Co. v. Crider, 124 Mo. App. 109, 100 S. W. 1099, a similar account was condemned as insufficient, under the authority of Rechnitzer v. Vogelsang, supra, and the authorities there cited, although the items thereof were dated. However, the still more recent decision of this court in Mercantile Co. v. Devore, 130 Mo. App. 339, 109 S. W. 808, should be considered in this connection. There the action was not one originating before a justice of the peace, but the sufficiency of an account annexed to a petition in the circuit court was under consideration. The items of this account were specified to be for "merchandise," and the petition itself alleged that the account was for "goods, wares, and merchandise." The account, as aided by the answer, showed the dates of the various items. It was held, in the majority opinion written by Nortoni, J., that the allegation in the petition included all kinds of goods, wares, and merchandise sold by plaintiff to defendant on the specified dates; and that it was sufficient to bar another action between the same parties for goods, wares, or merchandise of any character sold on such dates. The Rechnitzer Case, supra, was distinguished upon the ground that the account in that case did not show the dates or even the months upon which the alleged merchandise was purchased, and that it was not there aided by an answer.

The foregoing cases involved accounts for goods sold and delivered, and many other cases...