Sidway v. Missouri Land & Live Stock Company, Limited

Citation86 S.W. 150,187 Mo. 649
Decision Date30 March 1905
CourtMissouri Supreme Court

Appeal from Polk Circuit Court. -- Hon. Argus Cox, Judge.

Reversed and remanded.

Geo Hubbert, O. L. Cravens and Rechow & Pufahl for appellant.

(1) Points determined by the decision and opinion on the first appeal are not open questions now, but are res judicata; and the order of the Newton Circuit Court is in full force though it never has been complied with; and the Polk Circuit Court was without authority to disregard that order or put appellant under any apparent necessity of waiving objection to the petition or for substituting its own view as to what is a sufficient pleading. May v. Crawford, 150 Mo 524; Chapman v. Railroad, 146 Mo. 494; Overall v. Ellis, 38 Mo. 209; Butler v. Bank, 165 Mo. 456. (2) The company's articles of association, with the laws of Great Britain relating thereto, constitute both its charter and bylaws; and the provisions thereof bind the respondent as a member, dominate this case and bar his claim. 10 Cyc. Law and Proc., pp. 350, 774, 775; Purdy v. Bankers' Assn., 101 Mo.App. 91; St. Louis v. Clemens, 43 Mo. 404; 3 Thom. Corp., secs. 3906, 3908; Hill v. Coal Co., 119 Mo. 9; State ex rel. v. Wray, 55 Mo.App. 646; Johnson v. School District, 67 Mo. 319; 17 Am. and Eng. Ency. Law, 83. (3) The supposed express contract, on which respondent was permitted to recover below, is not sufficiently pleaded under the former order and decision in this case; and it is error to frame, try or adjudge issues not made by the essential pleadings of the parties. Garland v. Smith, 164 Mo. 1; Glass v. Gelvin, 80 Mo. 297; Wade v. Hardy, 75 Mo. 394; 15 Am. and Eng. Ency. of Law (2 Ed.), 1078. (4) The evidence as a whole is conclusive that respondent's services were given and received as free of charge, and appellant's demurrer thereto should have been sustained. Besides, respondent is concluded by the decision on the appeal from the first trial, wherein the evidence was substantially the same. Donnell v. Wright, 147 Mo. 648; Aull v. Aull, 80 Mo. 201; Jones on Ev., secs. 271, 291, 298; Fleeno v. Weston, 31 Vt. 345; Riley v. Sherwood, 155 Mo. 37; Klockenbrink v. Railroad, 172 Mo. 683. (5) According to respondent's own testimony, his services from the Dummit contract of July, 1889, could not be the basis of action, because, if given, they were in execution of a fraudulent conspiracy against the appellant. Whar. Agency, 336; Mech. Agen., sec. 1027; 22 Am. and Eng. Ency. Law (2 Ed.), 921; 1 Am. and Eng. Ency. Law (2 Ed.), 1102; Wadsworth v. Adams, 138 U.S. 380; Paul v. Minneapolis, 87 App. 654; Trice v. Comstock, 121 F. 620. (6) The respondent is barred of any right to recover for any alleged cause, or service, not within the five years statutory limit; and that is true even though his services were continuous; and it makes no difference that appellant is a foreign corporation. R.S. 1899, sec. 4273; Alkire Co. v. Taggart, 60 Mo.App. 393; Landis v. Saxton, 105 Mo. 491; Bollman v. Peake, 96 Mo.App. 253; Railroad v. Burlingame, 36 Kan. 628; Kraft v. Thomas, 123 Ind. 513; Palmer v. Palmer, 36 Mich. 488; Newhall v. Sherman, 124 Cal. 509; Riverview v. Dance (Va.), 35 S.E. 720; Chadwick v. Chadwick, 115 Mo. 586; Wood, Lim., sec. 120; Miller v. Cinnamon, 168 Ill. 447; Schmidt v. Pfau, 114 Ill. 494; Freeman v. Freeman, 65 Ill. 106; Hale v. Ard. 48 Pa. St. 22; Raynor v. Robinson, 36 Barb. 128; Graham v. Stanton, 177 Mass. 321; Adams v. Mills, 49 La. Ann. 775; Thompson v. Tex. Cat. Co., 24 S.W. 856; Jones v. Lewis, 11 Tex. 359; McLaughlin v. Maund, 55 Ga. 689; Martin v. Fox, 19 Wis. 552. As to foreign corporations: McNichols v. Mer. Agency, 74 Mo. 457; R.S. 1899, secs. 570, 1007, 4282; Orr v. Wilmarth, 95 Mo. 212; Mathews v. Appleberry, 57 Mo.App. 615; Harding v. Railroad, 80 Mo. 659; St. Louis v. Wiggins, 40 Mo. 580; Slavins v. Railroad, 51 Mo. 308; Murf. Foreign Corp., sec. 247; Hall v. Railroad, 28 Vt. 401; Ins. Co. v. Duerson, 28 Gratt. 630; Winney v. Mfg. Co. (Iowa), 50 N.W. 565; Bank v. Railroad, 82 Ill. 495; Bristol v. Railroad, 15 Ill. 495; Cobb v. Railroad, 38 Iowa 608. (7) The court below should have exercised its discretion soundly in the interest of a dispassionate trial by capable referee of the long itemized statement of account exhibited; and it was error to deny the motion for reference on plaintiff's petition. Ice Co. v. Tamm, 138 Mo. 389; Mills v. Thursby, 11 How. Pr. 113; Drug Co. v. Graddy, 57 Mo.App. 44. (8) The appellant should have been given the benefit of its verdict on the first trial against respondent, who did not appeal therefrom or attempt to have same vacated in any way. R.S. 1899, secs. 694, 697, 720-4; Booth v. Loy, 83 Mo.App. 601; Russell v. Railroad, 154 Mo. 428; Tinsley v. Kemery, 170 Mo. 317; Russell v. Railroad, 29 Mo.App. 371; Nichol v. Hyre, 58 Mo.App. 134.

John T. Sturgis and Adiel Sherwood for respondent.

(1) The Statute of Limitations does not bar plaintiff's claim. Ring v. Jamison, 66 Mo. 428; Vitti v Dixon, 12 Mo. 480; Steamboat v. Behler, 12 Mo. 477; Coal Co. v. Steamboat, 36 Mo. 446; Boylan v. Steamboat, 40 Mo. 250; Finney v. Brant, 19 Mo. 45; Fire Ext. Co. v. Elevator Co., 165 Mo. 181; MacAdam v. Scudder, 127 Mo. 354; Page v. Bettes, 17 Mo.App. 375; Chadwick v. Chadwick, 115 Mo. 586; Gibson v. Jenkins, 97 Mo.App. 36; Carson v. Steamboat, 16 Mo. 256; Austin v. Stine, 9 Mo. 558; Bambrick v. Bambrick, 157 Mo. 423; Livermore v. Wright, 33 Mo. 31; Moore v. Renick, 95 Mo.App. 209; Waldron v. Alexander, 35 Ill.App. 319; O'Brien v. Sexton, 140 Ill. 517; Littler v. Smiley, 9 Ind. 116; Grave v. Pemberton, 3 Ind.App. 71; Knight v. Knight (Ind. App.), 30 N.E. 421; Purviance v. Purviance, 14 Ind.App. 269; Sharick v. Bruce, 21 Iowa 305; Carter v. Carter, 36 Mich. 207; Shock's Admr. v. Garrett, 69 Pa. St. 144; Martin v. Imp. Co., 19 Wis. 552. This action is upon an express contract. The question whether or not there was one or more contracts was a question for the jury. The rule in Missouri has always been that "when the account sued on is a running account, and it is fairly inferable from the conduct of the parties while the account was accruing that the whole was to be regarded as one, none of the items are barred by the Statute of Limitations unless all are." Ring v. Jamison, 66 Mo. 428; Vitti v. Dixon, 12 Mo. 480; Steamboat v. Behler, 12 Mo. 477; Coal Co. v. Steamboat, 36 Mo. 446; Boylan v. Steamboat, 40 Mo. 250; Finney v. Bryant, 19 Mo. 45; Fire Ext. Co. v. Elevator Co., 165 Mo. 181; MacAdam v. Scudder, 127 Mo. 354; Page v. Bettes, 17 Mo.App. 375; Chadwick v. Chadwick, 115 Mo. 586; Gibson v. Jenkins, 97 Mo.App. 36; Carson v. Steamboat, 16 Mo. 256; Austin v. Stine, 9 Mo. 558; Bambrick v. Bambrick, 157 Mo. 423. (2) Declarations made by general officers of a corporation or acts done by them in the transaction of the business thereof -- and general officers include directors -- are the declarations of general agents and stand upon a different footing from declarations and admissions made by special agents of limited authority, especially so when the evidence discloses the fact that the entire business of the company or the entire transaction was committed to a particular officer or set of general officers, and when the admissions or declarations tend to establish an agreement they have made in the course of their general agency and valuable services have been received by the company; and this rule of law can be supported upon two theories. Morse v. Railroad, 6 Gray 450; Costigan v. Trans. Co., 38 Mo.App. 225; Railroad v. Jewett, 16 Ind. 273; Paper Works v. Willet, 1 Robt. (N.Y.), 131; Railroad v. Blade, 12 Rich. (S.C.), 634; Railroad v. Dally, 19 Ill. 353; Express Co. v. Harris, 120 Ind. 73; Green v. Min. Co., 45 Cal. 522; Abbott v. Seventy-Six L. & W. Co., 87 Cal. 323; Des Moines L. & T. Co. v. Trust Co., 82 Iowa 662; Railroad v. Coleman, 18 Ill. 297; McGennes v. Adriatic Mills, 116 Mass. 177; Toll Bridge Co. v. Batsworth, 30 Conn. 380; Halsey v. Railroad, 45 N.J.E. 26; Milbank v. De Riesthal, 82 Hun 537; Bank v. Frield, 2 Hill 445; Josephi v. Mady. Co., 13 Mont. 125; Reynolds v. Ins. Co., 80 Iowa 563; Tryon v. White & Corbin Co., 62 Conn. 161; Min. Co. v. McMahon, 1 Head 582; Tel. Co. v. Bennett (Texas), 21 S.W. 700; Walacek v. Railroad, 57 Mo. 21; 2 Whart., Ev., secs. 1173, 1177; Northrupp v. Ins. Co., 47 Mo. 442; Barry v. Foyles, 1 Pet. 311; Railroad v. Weaver, 35 Kan. 413; Hand v. Coal Co., 143 Pa. St. 408; Dunn v. Rector, 14 Johns. 118; Hooker v. Eagle Bank, 30 N.Y. 86; Fister v. Larue, 15 Barb. 323; Ins. Co. v. Potts, 5 N.J.L. 158; Hitchings v. St. Louis Co., 68 Hun 33; Min. Co. v. Humble, 153 U.S. 553; Chamberlin v. Min. Co., 20 Mo. 96; Morawetz, Corp. (2 Ed.), sec. 540a, p. 510; Railroad v. Green, 15 N.J.Eq. 469; National Exchange v. Drew, 2 Macq. S.C. App. 103; Trustees of St. Mary's Church v. Cagger, 6 Barb. 579; Hotel Co. v. Newman, 30 Mo. 121; Bullock v. Lumber Co., 31 P. 370. (3) Plaintiff is not required to show any formal record of the corporation to prove his employment. The question is whether the express contract sued on was made and services performed under it; and that question is for the jury -- the failure of the corporation's officers to make a record of the contract actually made will not preclude his recovery; otherwise, every man working for a corporation would be at the mercy of officers who have charge of corporation records. Hotel Co. v. Newman, 30 Mo. 120; Trustees St. Mary's Church v. Cagger, 6 Barb. 579; Taussig v. Railroad, 166 Mo. 32; Bank v. Hughlett, 84 Mo.App. 272; Beach v. Stouffer, 84 Mo.App. 397; Mill Co. v. Bennett, 38 Mo.App. 460. (4) The fourth instruction given by the trial court at the request of plaintiff simply declared...

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