Scott v. Robards

• Decision Date: 30 April 1878
• Citation: 67 Mo. 289
• Parties: SCOTT et al., Plaintiffs in Error v. ROBARDS.
• Court: Missouri Supreme Court

67 Mo. 289

SCOTT et al., Plaintiffs in Error

v.ROBARDS.

Supreme Court of Missouri.

April Term, 1878.

Error to Chariton Circuit Court.S. P. Huston and G. W. Easley for plaintiffs in error.

There are not three counts or causes of action set out in the petition. There is only one--the failure to release. The pleader confounds cause and effect. The cause is the failure to release; the effect is damages, three items of which are set out in the petition--one the statutory damage, the other two what are termed special damages, which must be set out in the petition or they cannot be recovered. If A should wrongfully throw down B's fence, that would be a complete and perfect cause of action; but if thereby cattle entered B's field and destroyed his crop, B would be required to allege that fact in order to entitle him to recover for the destruction of his crop. Yet no lawyer would pretend to say that such allegation of special damage would be the statement of a new or different cause of action. The ten per cent. fixed by the statute is expressly made one item of damages; other damages are allowed to be proven. In no case is a party permitted to split up his cause of action; he could not sue at one time for one item of damages, and again for another, and so on indefinitely. If the theory upon which this demurrer was sustained be correct, then a party can bring as many suits upon the same original cause of action as there may be items of special damage arising therefrom; for if they must be incorporated in different counts, they must, each independent of the other, constitute a complete and perfect cause of action, and a judgment in one action for one item of damages would be no bar to other suits upon the same original cause of action for other damages flowing therefrom. Such a theory is untenable.

A. W. Mullins for defendant in error.

The three alleged causes of action are separately stated in the petition, but there is no separate prayer or demand for the relief sought. The demurrer was, therefore, in that regard, well taken. 2 Wag. Stat., 1013, § 3; Clark v. H. & St. Jo. R. R. Co., 36 Mo. 202; Robinson v. Rice, 20 Mo. 229; Doan v. Holly, 25 Mo. 357; McCoy v. Yager, 34 Mo. 134; Linville v. Harrison, 30 Mo. 228. Waiving the question whether payment should have been made to the trustee, we claim that the petition is not good as against Helm, because there is no averment that he knew of the payment.

HENRY, J.

The petition in this case alleges that plaintiffs were indebted to John B. Helm by notes amounting, in the aggregate, to $7,000; and, on the 21st day of March, 1867, in order to secure their payment, they executed and delivered to defendant, Robards, as trustee, a deed of trust conveying for that purpose a large number of town lots in Brookfield, Linn county, Mo., (describing them particularly;) that after said notes became due, they paid the principal and interest to said Robards, and on the 1st day of May, 1872, they duly tendered to said Robards and Helm the cost of acknowledging satisfaction of said deed upon the record, or making and executing a sufficient deed of release of said deed of trust, and demanded of them the execution of a release of said deed of...