Rundelman v. John O'Brien Boiler Works Company

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

161 S.W. 609

178 Mo.App. 642

FERDINAND RUNDELMAN, Respondent,
v.
JOHN O'BRIEN BOILER WORKS COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 2, 1913

Appeal from St. Louis City Circuit Court--Hon. Eugene McQuillen, Judge.

AFFIRMED.

Judgment affirmed.

St. Louis, Mo., Aug. 17, 1911.
John O'Brien Boiler Works Co.,
To Ferdinand Rundleman, 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	Wages	20.40
Helper O'Brien	1.00	Moneys Recd	10.50
Car fare	.30	Balance due	9.90
3.30

Held, that, in view of the fact that plaintiff must be deemed to have sued for all the work performed at the place designated, for which compensation was due, the statement was sufficient, as against the charge that it failed to apprise defendant of the nature of the claim and as against the charge that it was not definite enough to bar another action on the same demand, although the dates on which the work was performed were not set out.

5. RES ADJUDICATA: Rights Concluded. A judgment concludes the rights of the parties with respect to the cause of action stated in the pleadings, whether they embrace all or only a portion of the demand involved in the cause of action.

6. ACTION: Splitting Cause of Action: Res Adjudicata. The plaintiff may not split an entire claim into two or more actions, whether it arises upon contract or in tort, so that where there are claims payable at different times, as where installments fall due at different periods, arising out of the same contract, even though a separate action may be brought as each amount or installment falls due, nevertheless if an action is brought when two or more such amounts or installments are due, all then due must be included in that action, and if any be omitted, the judgment will operate as a bar to the prosecution of another suit therefor.

7. JUSTICES' COURTS: Pleading: Construction of Statements. A very liberal rule prevails with respect to statements filed in justices' courts, 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.

8. JUSTICES' COURTS: Pleading: Variance. It is no more permissible for a party to bring a suit in a justice's court on one cause of action and recover on another than it is in a court of record.

9. JUSTICES' COURTS: Pleading: Variance: Mode of Objecting. The rule that 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 Sec. 1846, R. S. 1909, is applicable to justices' courts.

10. JUSTICES' COURTS: Pleading: Variance. In an action instituted in a justice's court, for work performed in a designated city, the fact that it was established that a part of the work sued for was performed in another city did not amount to a total failure of proof, but was merely a variance, and where, on appeal to the circuit court, defendant did not object to such evidence, on the ground of variance, nor file the affidavit required by Sec. 1846, R. S. 1909, he was precluded from complaining of the variance in the Court of Appeals.

Leahy, Saunders & Barth for appellant.

(1) The statement of account filed in the justice court and continued unamended in the circuit court was insufficient to apprise appellant of the nature of the claim, and was insufficient in law. The statement contains no dates upon which the work was done, or dates either when moneys were received or expended. The only date appearing is in the caption which is the date upon which the suit was filed in the justice court. Such statements have invariably been condemned by the appellate courts and held insufficient. Rechnitzer v. Vogelsang, 117 Mo.App. 148; Moffitt-West Drug Company v. Crider, 124 Mo.App. 109; McCrary v. Goode, 74 Mo.App. 425; Broughton v. Railroad Co., 25 Mo.App. 10; Doggett v. Blanke, 70 Mo.App. 499; Moffitt-West Drug Co. v. Johnson, 80 Mo.App. 428. (2) Where the plaintiff's own testimony is inconsistent with his statement of account, there is in so far a failure of proof, and the Court of Appeals will not suffier a judgment to stand when founded upon such inconsistency and when wholly against the evidence. Grace v. Gill, 136 Mo.App. 190; Griswold v. Haas, 145 Mo.App. 585; Hensler v. Stix, 133 Mo.App. 175; Klostermann v. Kage, 39 Mo.App. 60.

Frank A. C. MacManus for respondent.

(1) The statement filed with the justice is sufficient to support a verdict and there was evidence to support it. Gunther Bros. v. Aylor, 92 Mo.App. 166; Strickland v. Quick, 45 Mo.App. 610; Trimming Co. v. Railroad, 165 Mo.App. 354; Stratton v. Dudding, 164 Mo.App. 23. (2) This judgment was conclusive of all labor performed by plaintiff up to and inclusive of August 17, 1911, as against plaintiff in any other cause between the same parties.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION [161 S.W. 610]

[178 Mo.App. 645] 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, Ills., at 40 cts. per hour

$ 20.40.
Received from company	7.00
Paid out for company paid out	3.30
Du company	3.70
Cash	6.80
10.50
Room rent	2.00
Helper O'Brien	1.00
Car fare	.30
3.30

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