Ryors v. Prior

• Decision Date: 02 July 1888
• Citation: 31 Mo.App. 555
• Parties: R. STEELE RYORS, Respondent, v. GEORGE W. PRIOR, Appellant
• Court: Kansas Court of Appeals

31 Mo.App. 555

R. STEELE RYORS, Respondent, v. GEORGE W. PRIOR, Appellant

Court of Appeals of Missouri, Kansas City.

July 2, 1888

Appeal from Osage Circuit Court, HON. RUDOLPH HIRZEL, Judge.

Affirmed.

The case is stated in the opinion.

G. T WHITE and TRABER & GIBSON, for the appellant.

I. We claim that the petition is insufficient both in its heading or caption and in its conclusion. The first paragraph of section 3511 of the practice act, in stating what a petition shall contain, says, among other things, that it shall specify the term of the court. This being a positive command we insist that it does not fall within the defects that are cured by verdict. In the case of Pier v Heinrichoffen, 52 Mo. 335, EWING, J., referred to this section, and says that the forms of pleading, as well as the rules for their sufficiency, are to be determined by this section. And although the statute at that time did not contain this requirement, yet it has now become part of the section, and entitled to the same respect as the original.

II. Then as to the concluding part. Although the statute does not call for it, yet, on examination of all the forms given in the statute, and particularly when it is on an account, the petition invariably concludes with an averment that the amount sued for is then due. And as these forms, years ago were adopted by a legislative act which has not been repealed, I take it that they have all the force and effect that they would have if incorporated in the practice act itself. The case of Brown v. Kimmel, 67 Mo. 430, is a suit for attorneys' fees and bill of items filed as in this case, and the petition asks for judgment " for the balance due." Besides, while the petition is in some respects minute in its details, in setting out the contract sued on, there is nowhere any showing as to what time defendant was to pay plaintiff. The pleadings on both sides show that payments had been made, and defendant, in his answer, avers that he paid him all that he owed; and taking out the two one thousand-dollar items, and the two hundred and fifty-dollar item referred to in our statement, it will be seen that plaintiff's bill was more than paid. The two hundred and fifty-dollar item shows from the remarks that are opposite it that it should not have been included in the claim sued for, there being no showing that Lambeth would have employed plaintiff, or that he would have paid him that sum, or any other sum, for his services. And as this shows on its face that plaintiff was not entitled to any of this, we are left to infer that the jury, in making up their verdict, and in computing the amount, may have counted this in and included it in their verdict. And if so, this of itself ought to be ground for reversing the judgment. The remark opposite the item is substantially part of the petition. It was of itself a cause of action that might have been sued on by itself. And if it had been so sued on, no pleader would insist that plaintiff had a good cause of action, if his averments in the petition were the same as the words that are here used. And the fact that defendant not having demurred to it, an answering don't cure the defect. And this is a defect of a character that is not cured by the verdict. And the defect is properly brought to the attention of the court by motion to arrest judgment. It falls within the rule as laid down in Gould's Pleading, chapter ten, sections twenty to twenty-three and forty-four.

III. This is not a case in which the averment is defectively stated, but there are omissions of the necessary averment. Clinton v. Williams, 53 Mo. 144; Langford v. Sargen, 40 Mo. 160; Corpenny v. Sedalia, 51 Mo. 88; Jaccard v. Anderson, 32 Mo. 188; Welch v. Bryan, 28 Mo. 30. Here the gist of the action is omitted, and hence not cured by verdict. Hart v. Wine Co., 91 Mo. 419, 420.

IV. Again we insist that the court erred in directing the jury to disregard all evidence offered by defendant in support of his counter-claim. No demurrer had been filed to it, nor had any denial been made that put the matters as therein set out in issue. In fact, the allegations and claim stood as confessed. While the statute (sections 3524, 3525, and 3526) requires plaintiff, by way of replication, to deny any new matter that may be set up in the answer, it was not sufficient merely for a reply to defendant's answer, and then deny all the new matter therein contained. This, we insist, leaves the counter-claim unanswered and confessed. And even outside of this, the reply does not come up to what we would consider a sufficient answer to the new matter, as the above sections of the statute require. Watson v. Hawkins, 60 Mo. 550; Bliss on Pleading, secs. 393, 396. The verdict is insufficient in its finding, and so written on a separate slip of paper, and so worded, that no court should be sustained in receiving it in such form and entering up a judgment on the same. There is nothing in this paper to indicate that the finding was on the issues in the case, as required by section 3628 of the statutes. But on the other hand, it would seem, from the way they report to the court, that plaintiff had lost some money, and these men come into court and report that they, as jurors, and not a jury, had found one thousand dollars that had belonged to plaintiff, and to be sure to indicate that they are not doing it as a jury, one of them signed his name, giving only the initials of his Christian name, and adding to it the word forman, and not foreman, and there is nothing in it to indicate that he was foreman of the jury. And until the clerk, after they had been discharged, wrote on the back of the slip of paper the names of plaintiff and defendant, there was nothing about it to indicate what it was intended for, or to show in whose favor or against whom the verdict was intended to have been rendered. Again, we insist that the finding of the jury is not sufficient, there being nothing to indicate that their finding was on the issues, and that they made a computation or assessment of the amount due. Cates v. Nickell, 42 Mo. 169; Cattel v. Pub. Co., 88 Mo. 356; Litton v. Rogers, 39 Tex. 152; Heath v. Lynch, 96 Ill. 406; Davy v. Webb, 28 Conn. 540; 3 Graham and W. on New Trials, 1378; Wynn v. State, 1 Blatchford, 28; Archibald's Crim. Prac. 667, quoting 4 Bl. Com. 360.

SMITH, SILVER & BROWN, for the respondent.

I. The objection that the petition does not allege the term of court to which the action was brought comes too late after verdict. It was at most a cause of action defectively stated. Roberts v. Walker, 82 Mo. 200; Grove v. City, 75 Mo. 675. Where one " pleads to the merits he thereby waives objections to formal defects and will not be heard on the trial (a fortiori after trial) to object that the petition does not state a cause of action." Grove v. City, 75 Mo. 675. Besides the term of the court sufficiently appears from the entire record. And courts will take judicial notice of terms of court. 65 Mo. 183; 64 Mo. 382.

II. The petition is good certainly after verdict against the objection that it does not state the fees sued for were due. (a ) The account, on its face, purports to state that the fees therein named are due. (b ) The petition charges that defendant was to pay a reasonable compensation for plaintiff's services stated in the account. The compensation was, therefore, due immediately on the rendition of the services. 40 Barb. 119. Where no time for payment is specified in a note, it is payable on demand. 1 Daniel Neg. Inst., sec. 88. In this case suit was a demand. Rev. Stat., sec. 1018. (c ) Although a material fact is not expressly averred, yet if it is necessarily implied from what is stated in the petition, the latter is good after verdict. Grove v. City, 75 Mo. 675; Boone v. City, 51 Mo. 461. Taking the averments of the petition and the account together it is certainly to be implied that the fees sued for were due.

III. ( a ) The counter-claim is part of the answer (Rev. Stat., sec. 3521), and, therefore, the denial of the new matter in the answer necessarily denied the facts set up in the counter-claim. (b ) Besides the case having been tried on the theory that the counter-claim was denied, it is too late for defendant to raise that question after trial. Howell v. Reynolds, 51 Mo. 154. (c ) Again the court directed the jury to disregard the counter-claim, to which no exceptions were saved. The action of the court in so doing, is not rightly raised in the motion in arrest of judgment. White v. Caldwell, 17 Mo.App. 691.

IV. Even if the two hundred and fifty-dollar item in the account did not fall within the averment of the petition, this was no ground for arresting the judgment. (a ) Because objection to evidence, as to the item, was the proper course. No evidence is preserved in the bill of exceptions. The verdict is conclusive on the facts. Kimmel v. Benna, 71 Mo. 645. (b ) The item itself was a proper...