Sonnenfeld v. Rosenthal

• Citation: 152 S.W. 321,247 Mo. 238
• Parties: FANNY SONNENFELD v. ISAAC B. ROSENTHAL, Appellant
• Decision Date: 31 December 1912
• Court: Missouri Supreme Court

152 S.W. 321

247 Mo. 238

FANNY SONNENFELD v. ISAAC B. ROSENTHAL, Appellant

Supreme Court of Missouri, Second Division

December 31, 1912

Appeal from St. Louis City Circuit Court. -- Hon. Robert M. Foster Judge.

Reversed and remanded (with directions.)

Albert Arnstein, Herbert N. Arnstein and Judson & Green for appellant.

(1) A suit cannot be instituted on one cause of action, and a recovery had on another. Butcher v. Death, 15 Mo 271; Clements v. Yeates, 69 Mo. 623; Stix v Matthews, 75 Mo. 96; Comm. Co. v. Bank, 116 Mo. 558; Construction Co. v. Iron Works, 169 Mo. 137. The court having found the only contract was that of January 3, 1891, for $ 11,573.74, erred in rendering a judgment for plaintiff on a petition which counted upon a contract of February, 1892, for $ 16,648.86. (2) The granting of leave to amend a petition when the cause of action is not thereby changed, is within the sound discretion of the court, but the abuse of this discretion is error. That discretion is abused when the party to whom the leave has been granted is guilty of gross laches. Emeric v. Alvarado, 90 Cal. 444; Craig v. Rope Co., 38 Col. 115; Mining Co. v. Hanley, 9 Ida. 786; Sanders v. Wakefield, 41 Kan. 11; Hill v. Ragland, 114 Ky. 209; Association v. Brahan, 80 Miss. 407; Kelly v. Kershaw, 5 Utah, 295; Miller v. Mitchell, 58 W.Va. 431; Bank v. Goldsoll, 8 Mo.App. 595; 1 Am. and Eng. Ency. Law, 522. This cause was tried before the referee, and before the court on exceptions to the referee's report, upon the plaintiff's allegation that the contract relied on was the one of February, 1892. The contract of 1891 was in evidence one and one-half years before the amendment to the petition was made; yet after its introduction, plaintiff still insisted that she relied on the 1892 contract and defendant was put to great trouble and expense to meet that issue; plaintiff's laches under the circumstance was unpardonable, and the court erred in permitting the petition to be amended at that late day, and defendant's motion to set aside the order granting such leave should have been sustained. (3) It is error to grant leave to amend a pleading when its effect is to change the entire cause of action. Scovill v. Glasner, 79 Mo. 449; Lamar v. Lamar Co., 118 Ga. 850; Heman v. Glann, 129 Mo. 325; Lennox v. Coal Co., 158 Mo. 473; Ross v. Mineral L. Co., 162 Mo. 317. (4) There are three tests to determine whether an amendment states a new cause of action, to-wit: Will the same evidence support both pleadings? Will the same measure of damages apply? Would a judgment on one action bar an action upon the other? Liese v. Meyer, 143 Mo. 547; Scovill v. Glasner, 79 Mo. 449; 3 Cyc. 679; Van Patten v. Waugh, 122 Iowa 302; Whalen v. Gordon, 95 F. 305; Ross v. Mineral L. Co., 162 Mo. 317; Lumber Co. v. Water Co., 94 Tex. 456. By any one of these tests it is clear the amendments to the third amended petition constituted a new and distinct cause of action. (5) When an amendment sets up an entirely new cause of action, the running of the Statute of Limitations is not arrested until the amendment is filed. Buel v. Transfer Co., 45 Mo. 562; Patillo v. Com. Co., 131 F. 680; Sims v. Field, 24 Mo.App. 557; Bricken v. Cross, 163 Mo. 449; Philadelphia v. Railroad, 203 Pa. St. 38; Railroad v. Scott, 75 Tex. 84; Cotton v. Rand, 93 Tex. 7; Nelson v. Bank, 139 Ala. 578; Railroad v. Wyler, 154 U.S. 285. Since the amendment to the third amended petition sets up an entirely new cause of action, and was not filed until February 15, 1908, nearly fourteen years after the date of the last alleged loan, the entire first cause of action is barred on the face of the pleadings. Burrus v. Cook, 215 Mo. 496. (6) The loans alleged to have been made in 1892-3-4, aggregating $ 11,952.50, less credits of $ 6006.25, were barred by the five-year Statute of Limitations at the time the suit was filed September 19, 1902, for the reason that the contract of January 3, 1891, on which plaintiff finally based her case, provided only for additional loans to be made during the year 1891, and the loans of 1892-3-4 had no written contract to support them. R.S. 1909, sec. 1889. (7) There was not a scintilla of evidence in the record proving or tending to prove that the sum of $ 5075.12 or any other sum was loaned defendant during 1891, that allegation having been set up for the first time in the amendment to the third amended petition; error was committed in including that amount in the judgment. (8) R.S. 1909, sec. 1859, provides: "If any amendment be made to any pleading, the adverse party shall be allowed an opportunity, according to the course and practice of the court, to answer or reply to the pleading so amended." Defendant was given no opportunity to plead to the amendments to the third amended petition, and if this case cannot be decided on other grounds, it must be reversed as in violation of this statute. (9) The lists alleged to have been made by Meyer, the bookkeeper, should not have been admitted in evidence, because (a) they do not show all the items of the alleged account, but are simply compilations of the bookkeeper, of what he says were "unsettled" items; and, by analogy to the authorities holding that books or memoranda showing only balances or totals are incompetent, should have been excluded. Putnam v. Grant, 101 Me. 240. (b) They were not contemporaneous with the facts alleged to be recorded therein, and therefore not part of the res gestae, both of which are essential to the admissibility of book entries. Investment Co. v. Vette, 142 Mo. 560; Milling Co. v. Walsh, 108 Mo. 277; Wells v. Hobson, 91 Mo.App. 379; Stephan v. Metzger, 95 Mo.App. 609. (c) They were not original entries; they were compilations of and extracts from prior lists; they were made in 1895, and purport to show alleged transactions of 1892, 1893 and 1894. Milling Co. v. Walsh, 108 Mo. 277; Stephan v. Metzger, 95 Mo.App. 609; Gubernator v. Rettalack, 86 Mo.App. 184; Owen v. Bray, 80 Mo.App. 526; Stark v. Burkit, 129 S.W. 343; Estes v. Jackson, 21 Ky. L.R. 859; Bank v. Chaffin, 118 Ala. 246; Woolsey v. Bohn, 41 Minn. 235; Drug Co. v. Graddy, 57 Mo.App. 41. (10) The account entitled "Adolph Rosenthal Special Account" was not admissible in evidence, because: (a) it does not purport to charge the defendant for loans from plaintiff, but on its face is an account between the Sonnenfeld Millinery Company and Adolph Rosenthal. (b) Certain entries in the account were conclusively proved to have been made from twelve days to three months and nineteen days after the transaction. Hence the account did not consist of contemporaneous entries, part of the res gestae. Investment Co. v. Vette, 142 Mo. 560. (c) The first item of the account was on its face not an original entry. This item reads: "February 1, 1892. To balance $ 16,648.86." It should therefore have been excluded both as being an aggregate or balance, and as not being an original entry. McClintock's Appeal, 58 Mich. 152; Corr v. Sellers, 100 Pa. St. 169. (11) The reference was compulsory, and the appellate court should review the findings of fact. Small v. Hatch, 151 Mo. 300; Williams v. Railroad, 153 Mo. 487.

David Goldsmith for respondent.

(1) There being no objection to the introduction of the testimony with respect to the "Adolph Rosenthal Special" account before the referee, objection cannot be made thereto in this court. Hill v. Bailey, 8 Mo.App. 83; Morris v. Husson, 8 N.Y. 204; Phelps v Peabody, 7 Cal. 50; Simpson v. Gregg, 5 Neb. 237; Matter of Little, 47 App.Div. (N.Y.) 22. (2) The exceptions taken to the referee's report with regard to that account, are insufficient, and are therefore not available in this court. Ferry Co. v. Railroad, 73 Mo. 419; Cahill Co. v. McCormish, 74 Mo.App. 613; Dallas v. Brown, 60 Mo. 496; Royall's Admr. v. McKenzie, 25 Ala. 364; Loveman v. Taylor, 85 Tenn. 2; Snell v. DeLand, 138 Ill. 55; Title Co. v. Burdette, 104 Md. 676; Arthur v. Commissioners, 67 Pa. St. 223; Burt's Estate, 114 Pa. St. 190; Cooper v. Middletown, 94 N.C. 93. (3) Even if the exceptions to the referee's report with respect to that account were sufficient, they would apply only to the account in its entirety, and not to any item of it. Stephan v. Metzgar, 95 Mo.App. 623; Logan v. Field, 192 Mo. 69; Grimm v. Dundee Co., 55 Mo.App. 557. (4) The entries in the books or slips of the Sonnenfeld Millinery Company with respect to the loans made in 1893 and 1894, are original entries. Plummer v. Struby Co., 23 Colo. 190; Hall v. Gliddon, 39 Me. 445; Nichols v. Vincent, 9 Houst. (Del.) 274; Redlich v. Bauerlee, 98 Ill. 134; Hartley v. Brookes, 6 S. & R. (Pa.) 189. "Original entries on loose sheets are as competent as like entries in books of account." Bell v. McLeran, 3 Vt. 185; Gleason v. Kinney's Admr., 65 Vt. 560; Taylor v. Tucker, 1 Ga. 234; Smith v. Smith, 4 Harr. (Del.) 532; Kendall v. Field, 14 Me. 30. And these entries and slips are competent as secondary evidence. Stanley v. Wilkerson, 63 Ark. 556; McCrady v. Jones, 36 S.C. 196; Rigby v. Logan, 45 S.C. 651; Pohl v. Bradford, 25 S.W. 984. (5) They were properly used as memoranda to refresh the memory of Joseph W. Meyer. Stephan v. Metzgar, 95 Mo.App. 624; Eberson v. Investment Co., 130 Mo.App. 308; Ward v. Transfer Co., 119 Mo.App. 92. (6) The amendment of plaintiff's petition made after the report of the referee did not amount to a change of the cause of action originally pleaded. Little v. Fairchild, 195 Pa. St. 614; Bedford v. Terhune, 30 N.Y. 453; Gray v. Bass, 42 Ga. 270; Kimble v. Bryan, 56 Iowa 632; McVicker v. Beedy, 31 Me. 382; Johnson v. Association, 48 N.Y. 439; Stewart v. Van Horn, 91 Mo.App. 655; Farmington v. Tel. Co., 135 Mo.App. 697; Clarkson v. Lee, 133 Mo.App. 53. (7) Any deficiency in the pleadings of the plaintiff...