Sidway v. Missouri Land & Live-Stock Co.

• Decision Date: 11 June 1901
• Citation: 63 S.W. 705,163 Mo. 342
• Court: Missouri Supreme Court
• Parties: SIDWAY v. MISSOURI LAND & LIVESTOCK CO., Limited.

63 S.W. 705

163 Mo. 342

SIDWAY v. MISSOURI LAND & LIVESTOCK CO., Limited.

Supreme Court of Missouri, Division No. 2.

June 11, 1901.

PLEADING — MOTION TO MAKE CERTAIN — CONSTRUCTION — PETITION — SUFFICIENCY — INSTRUCTIONS — MULTIPLICITY — GROUND FOR REVERSAL — SERVICES RENDERED — QUESTION AS TO GRATUITY — BURDEN OF PROOF — MISLEADING INSTRUCTIONS — WITNESSES — ACTS AND STATEMENTS OF DECEASED PERSONS.

1. Under Rev. St. 1899, § 612, making it the duty of the court to require pleadings which are indefinite to be made more definite and certain, it is not necessary for a defendant to file a motion to make a petition more definite and certain, in order to raise the question of its uncertainty and indefiniteness.

2. That Rev. St. 1899, § 629, requires pleadings to be liberally construed, does not throw on an adversary the hazard of correctly interpreting the meaning of a pleading containing doubtful and uncertain allegations; such statute extending only to the form, and not to the fundamental requirements, of pleading.

3. Under Rev. St. 1899, § 592, requiring that the petition in an action shall contain a plain and concise statement of the facts constituting the cause of action, and section 612, providing that the precise nature of the charge must be apparent, a petition for work and labor done and money advanced which fails to set forth the character of the work, and the authority by which it was rendered, and the purpose for which or person to whom the money was advanced, is insufficient.

4. Under Rev. St. 1899, § 628, providing that the allegation of new matter in the reply shall be deemed controverted by the adverse party, as on a direct denial or avoidance; section 596, providing that the only pleading on the part of a defendant is either demurrer or answer; section 607, providing that defendant may demur to a reply; and section 609, providing that when a replication shall be filed the cause shall be deemed at issue, — there is no necessity of a rejoinder on the part of the defendant.

5. The giving of instructions which, when printed, cover 9½ pages, is ground for reversal of the judgment; the effect being not to instruct, but to confuse, the jury, so as to make their verdict mere guesswork.

6. In an action for alleged services in the management of defendant's company's business and in selling their lands, and for money advanced for such company in making certain trips, of which company plaintiff was a shareholder, defendant averred that the services were gratuitous, and introduced letters written by plaintiff to other shareholders and the directors in which he said that, though not connected with the management, he would undertake to represent the shareholders in certain matters; further, that he made certain trips at his own option and expense; and, also, "I get no pay from the company for any services." The books of a firm, of which plaintiff was a partner, engaged in selling land, contained no charge for selling lands for the company; nor did he lay claim for services rendered until many years thereafter. Held, that there was no basis for an instruction, given at plaintiff's instance, that the burden was on defendant to show that the services were gratuitously performed.

7. An instruction in such action that though the jury might believe that plaintiff, in the course of his correspondence with the shareholders and directors, "casually used expressions" to them which implied that he was not receiving compensation, yet, under certain circumstances mentioned, the verdict should be for plaintiff, was misleading, since no such statements, as employed by plaintiff, could be deemed "casually used expressions," and hence ground for reversal.

8. In an action against a corporation for services rendered and money alleged as having been paid for its use, plaintiff, testifying in his own behalf, cannot give evidence as to any acts or words of the manager of such company, who has since died.

Appeal from circuit court, Newton county; J. C. Lamson, Judge.

Action by Leverett Barker Sidway against the Missouri Land & Live-Stock Company, Limited. From a judgment in favor of plaintiff and an order denying a motion for a new trial, defendant appeals. Reversed.

Geo. Hubbert, for appellant. W. Cloud and Benton & Sturgis, for respondent.

SHERWOOD, J.

Action by plaintiff, brought March 3, 1896, for alleged services, management, etc., and for cash said to have been paid to one Dummit on behalf of the defendant company. These matters were mingled together in vexatious and inextricable confusion in the first count of the petition, with no particulars as to the character of the services rendered, or by whom or under what contract or authority rendered, or in what circumstances or under what authority, on what account, for what purpose, to what person or persons, the money was loaned, paid, advanced, or disbursed. The first count averred that $11,300 was due for services rendered, and $4,600 for cash expended, etc., with a credit of $894.50, leaving a balance due of $15,005.50; the second count for $1,000, for the purchase of goats alleged to have been taken possession of by defendant company and converted to its own use. Plaintiff promoted a corporation in Scotland, with a capital stock of 30,000 shares, at £5 per share, for the purchase of 340,000 acres of land in Southern Missouri. He held an option on the land from the Frisco Railway Company at $1.05 per acre, and sold the same to the foreign corporation at $1.50 per acre; plaintiff holding 4,000 shares of the capital stock of the corporation. At the time of the incorporation, in 1881, plaintiff, as a large holder of stock, living in America and being familiar with the country, agreed to look after the interest of the company until it was on a paying basis, and also suggested a stock farm or ranch on about 2,700 acres of the land in Newton county. The ranch feature proved a losing venture, causing much dissatisfaction among the shareholders, so that in 1885 the resident manager, appointed by the board of directors in Scotland, resigned his position, and the plaintiff took charge of the ranch and ran it two years, with no improvement in its condition, so that in 1887 the farm was leased to one Dummit, and the stock on the ranch sold to him; the company taking a mortgage on the same, with plaintiff as surety on a certain bond. There is no written agreement of compensation for services, nor is there a written contract that certain moneys should be furnished the lessee. The causa causans of this suit being brought by plaintiff arose in this way: When defendant company asserted that a default in and breach of the conditions of the bond had occurred, and demanded payment of $3,000 and interest, it occurred to plaintiff that defendant company was owing him for services rendered, money advanced, paid over, loaned, and disbursed, for years and years, and no mention ever made of it before by him to the company. With his remembrance thus quickened and refreshed, this suit was brought by plaintiff.

Plaintiff filed an amended petition. To this amended petition defendant company filed a motion to make the same, as well as the bill of particulars therein, more definite and certain, which motion was based on the indefinite, uncertain, and ambiguous allegations, substantially as set forth in the original petition. This motion the court granted, and, in furtherance thereof, entered the following order:

"Comes now the defendant, by its attorney, George Hubbert, who calls up the motion heretofore filed herein for the making plaintiff's amended petition more definite and certain; and the plaintiff also appearing to the said motion by his attorneys, Cloud & Davies; and, the said motion and argument of the attorneys thereon being fully heard and understood, the court doth now rule for defendant, and sustain the said motion; and plaintiff is therefore ordered and required to make his said petition and statement of particulars more definite and certain, by setting out distinctly the items and facts for and on account of which the action is brought, with definite specification as to the character of the alleged services of plaintiff, where, and under what employment rendered, the prices thereof, and by what means fixed, and with definite specifications of the particulars, cash claimed for, the several sums, when, on what account, for what purpose, by what authority, under what contract, and to what person, loaned, paid, advanced, or disbursed, and that such certainty be attained by amendments of petition filed in the office of the clerk of this court," etc.

In ostensible compliance with said order, plaintiff filed his second amended petition:

"Comes now the plaintiff in the above-entitled cause, and, for his second amended petition and statement, says: That the defendant is now, and was at all times hereinafter mentioned, a corporation duly organized and existing as such, having its organization and chief office at Edinburgh, Scotland, and has and usually keeps an office and agent for the transaction of its usual and customary business in Newton county, Missouri, and owning and holding large tracts of land in Newton and other counties in Southwest Missouri, and during all said times was engaged in buying and selling said land, collecting the purchase money therefor, and in improving said land, advertising the same, erecting buildings, and conducting farming operations, and raising and buying and selling stock, and that plaintiff was engaged in business in Chicago, Ill., and was skilled in the management and transaction of such business as the plaintiff was engaged in; and, for cause of action, plaintiff states that defendant is indebted to him, for services rendered in and about the transaction of its business, and for money loaned to defendant, and for money had and received by defendant, in the sum of fifteen thousand and five and 50/100 dollars, the items and debts whereof, and...