Sessinghaus Milling Co. v. Hanebrink

• Decision Date: 31 December 1912
• Citation: 152 S.W. 354,247 Mo. 212
• Parties: SESSINGHAUS MILLING COMPANY, Appellant, v. CHRISTOPHER J. HANEBRINK
• Court: Missouri Supreme Court

152 S.W. 354

247 Mo. 212

SESSINGHAUS MILLING COMPANY, Appellant, v. CHRISTOPHER J. HANEBRINK

Supreme Court of Missouri, Second Division

December 31, 1912

Appeal from St. Louis City Circuit Court. -- Hon. Moses N. Sale Judge.

Reversed and remanded (in part).

Henry H. Oberschelp for appellant.

(1) The first count of the petition stated a cause of action. Myles v. Myles, 69 Ky. 237; Cooley on Torts (3 Ed.) p. 997, sec. 615; 21 Am. & Eng. Ency. Law (2 Ed.), 875, 876 and 878; Mechem on Agency, secs. 454, 473 and 474; 1 Am. & Eng. Ency. Law (2 Ed.), 1058; Huffcut on Agency (2 Ed.), p 106, sec. 87; Shea v. Mabry, 1 Lea (Tenn.) 319. (2) The evidence sustained the allegations of the second count of the petition. Hingston v. Montgomery, 121 Mo.App. 451.

W. B. Thompson and Ford W. Thompson for respondent.

(1) There was no evidence to sustain the second cause of action stated in the petition, which was an action to recover for a loss of $ 3603.08 and interest on account of purchases, in which it is alleged that the defendant, as president and manager, entered into the contracts for the purchase of wheat to be delivered at a future date, with no intention of receiving the grain or using it for plaintiff's business, but solely to settle the difference between the contract and market prices. R.S. 1909, sec. 4780; State v. Gritznor, 134 Mo. 512; Lane v. Grain Co., 105 Mo.App. 215; Murman v. Rose, 132 Mo.App. 73; Connor v. Black, 119 Mo. 126; Edwards Brokerage Co. v. Stevenson, 160 Mo. 516; Taylor v. Sebastian, 158 Mo.App. 157; State v. Miner, 233 Mo. 333. (2) There was no cause of action stated in the first count of the petition, because (a) there was no allegation that any person was deceived by the purchase of any of the barrels of flour; (b) it appears that the flour was sold in the trade and that such sales were made subject to the rule of caveat emptor; (c) it is not actionable to sell unsound property, knowing it to be unsound; (d) there is no allegation in the petition that any purchaser did not know that any of the flour purchased was unsound or was sold under any false brand. Cooley on Torts, 465-475; Stewart v. Dugan, 4 Mo. 245; Stewart v. Dugan, 28 Am. Dec. 348; Harrison v. Walton, 89 Mo.App. 164; Whitmore v. Coates, 14 Mo. 10; Graff v. Foster, 67 Mo. 512; Stevens v. McKay, 40 Mo. 224; Nugent v. Packing Co., 81 S.W. 506; Tufts v. Morris, 87 Mo.App. 98; 35 Cyc. 240. (3) The first cause of action in plaintiff's petition was an action ex delicto; the second cause of action was an action ex contractu. These two causes of action cannot be joined in the same petition. R.S. 1909, sec. 1800, par. 5; Hingston v. Montgomery, 121 Mo.App. 451; R.S. 1909, sec. 1795; Otis v. Bank, 35 Mo. 129; Mooney v. Kennett, 19 Mo. 551; Christal v. Craig, 80 Mo. 367; Courtney v. Blackwell, 150 Mo. 273.

BLAIR, C. Roy, C., concurs.

OPINION

BLAIR, C. --

Appellant commenced this action in the circuit court of the city of St. Louis to recover from respondent, its former president and manager, damages for injuries to its business from his misfeasance and also to recover certain sums of money alleged to have been lost in speculative transactions in grain. The petition contains two counts. In the first count it is alleged appellant is a Missouri corporation, engaged in manufacturing and selling flour; that respondent was its president and paid manager, having charge and managing and conducting the business from June 29, 1901, to January, 1906; that appellant "at all times herein mentioned had several grades and kinds of flour, three of which were known respectively as 'SSSS,' 'Patent' and 'Extra Fancy'; that it had gained an excellent reputation for fair dealing and had created a big market for its said grades and brands of flour which were well known, and by reason thereof plaintiff did a lucrative business, all of which defendant well knew;" that "during the aforesaid period, as such president and manager, and in the management and control of plaintiff's business, defendant knowingly and wilfully and without any right or authority repeatedly manufactured and sold and caused to be manufactured and sold inferior flour as and for plaintiff's high grade flour, known as 'SSSS,'" numerous specific sales being set out in the petition, coupled with a further allegation of like sales to unknown persons aggregating 10,000 barrels. There are similar allegations as to the manufacture and sale of inferior flour "as and for the high grades" known as "Patent" and "Extra Fancy," aggregating 10,000 barrels in each instance. It is further alleged: "and defendant, as aforesaid, knowingly, wilfully and without any right or authority, repeatedly caused to be ground into flour unsound wheat, uncleaned wheat, and dirt and foreign substances with wheat, and sold and caused to be sold such flour as and for clean, sound, pure flour, which sales were to various persons and customers in various quantities, aggregating in amount fifteen thousand barrels, but the name of the vendee and amount and date of each sale plaintiff does not know and cannot ascertain. And plaintiff states that as a direct result thereof plaintiff's reputation for fair dealing and the reputation of its finer grades or brands of flour were greatly impaired, and its business was well nigh ruined, and its capital stock and assets were seriously impaired, all of which defendant knew and must have known would be and all of which was the direct consequence of his said conduct, and all to plaintiff's damage," etc.

The second count alleges respondent used funds of appellant in paying losses in certain designated speculative ventures, and prays judgment for the sums thus dissipated.

A general demurrer to the first count was sustained and on a trial on the second count a verdict was directed for defendant. Judgment was entered on the demurrer and the verdict and this appeal followed.

The evidence offered on the trial on the second count tended to show respondent made a number of purchases of grain for future delivery. Witnesses explained the mysteries of "puts" and "calls," but there was no evidence respondent's transactions fell within either of such terms. The evidence indicates, so far as it indicates anything, that the purchases assailed were made on the Merchants Exchange where appellant sold its flour. There were books and exhibits put in evidence which do not appear in this record. The evidence is confusing, uncertain and much of it irrelevant, but the above is a sufficient summary for the purposes of the case.

I. There was no error in directing a verdict on the second count. Flour cannot be made without wheat. Appellant produced no wheat. It had to buy it. With a capacity of four or five hundred barrels per day it was doubtless necessary to make purchases somewhat in advance in order to insure at all times a supply of grain for use in manufacturing flour. It was respondent's duty to do this. The second count does not proceed on the theory of negligence, inattention or poor judgment in buying, but upon the theory there had been no purchases at all, merely pretended purchases. The evidence, in so far as it indicates anything, indicates purchases were made. Respondent had authority to buy. It is not contended he had no authority to sell grain previously purchased, nor that loss resulted from injudicious sales. Recovery is not sought on such grounds. Further, the trial court had before it accounts, statements and the books of the corporation relating to the transactions forming the basis of the second count and several of these exhibits are not in the record before us. When the question at issue is the sufficiency of the evidence, it is seldom safe to omit abstracting any part of it. The omitted exhibits may have negatived appellant's claim. There is nothing in the record as presented to convict the trial court of error in directing a verdict and, as to the second count, the judgment must be affirmed.

II. It is contended there was a misjoinder of causes of action in the petition and as a consequence the ruling on the demurrer to the first count must be sustained. It is sufficient answer to this that no such question was raised in the trial court. The demurrer to the first count was put solely on the ground that the count stated no cause of action. There was an answer to the second count and no demurrer to the petition as a whole. Demurrers must be specific (Sec. 1801, R.S. 1909) and the objection for misjoinder of counts in a petition must be raised by demurrer in the trial court before it can be considered here. [Jamison v. Copher, 35 Mo. 483, 487; House v. Lowell, 45 Mo. 381.]

III. The demurrer to the first count was sustained on the ground that the facts stated were not sufficient to constitute a cause of action. This presents the real question in this case. With mere uncertainties in the allegations and with surplusage we are not now concerned since no motions aimed at such defects were filed below.

The code provides (Sec. 1831, R.S. 1909) that for the purpose of determining the effect of a pleading "its allegations shall be liberally construed, with a view to substantial justice between the parties," and even at common law in case of ambiguity that meaning is to be taken which will support the pleading. With these principles in mind an analysis of the first count of the petition discloses that while its allegations are halting and inartificial, yet these facts, among others, appear: (1) appellant had established a good reputation for fair dealing and created a lucrative business in certain brands of flour, (2) respondent was the paid manager and president of appellant, (3) had charge of and conducted appellant's business, and, (4) as such manager, wilfully and wrongfully manufactured and...