State ex rel. Missouri State Highway Board, to Use of Fredonia Portland Cement Co., v. Cox

• Citation: 1 S.W.2d 787,318 Mo. 387
• Decision Date: 07 December 1927
• Docket Number: 27938
• Parties: The State ex rel. Missouri State Highway Board to Use and Benefit of Fredonia Portland Cement Company v. Argus Cox et al., Judges of Springfield Court of Appeals
• Court: Missouri Supreme Court

1 S.W.2d 787

318 Mo. 387

The State ex rel. Missouri State Highway Board to Use and Benefit of Fredonia Portland Cement Company v. Argus Cox et al., Judges of Springfield Court of Appeals

No. 27938

Supreme Court of Missouri

December 7, 1927

Motion for Rehearing Denied December 30, 1927.

Record quashed.

J T. Cooper and W. R. Robertson for relator.

(1) The holding of the Court of Appeals that the defense of defect of parties plaintiff or lack of capacity of plaintiff to sue is available to the Southern Surety Company is in conflict with the decisions of this court. R. S. 1919, secs. 1226, 1230; Y. M. C. A. v. Dubach, 82 Mo. 481; State ex rel Westhus v. Sullivan, 283 Mo. 570; Gregory v McCormack, 120 Mo. 657; State ex rel. Renfro v Service Cushion Tube Co., 291 S.W. 108; State ex rel. Hawkins v. Edwards, 286 S.W. 26; Mechanics' Bank to use Davis v. Gilpin, 105 Mo. 17; State ex rel. Bell v. Fidelity & Guaranty Co., 236 Mo. 352, 365; Kansas City ex rel. Diamond Brick & Tile Co. v. Schroeder, 196 Mo. 303. (2) Said Court of Appeals in holding that said highway board was non-existent, that it had no capacity to appear in this case or to sue, that there had been no waiver of the alleged defect of parties plaintiff, and that the Surety Company is not estopped from setting up these alleged defects, is in conflict with the decisions of this court. Kansas City ex rel. Diamond Brick & T. Co. v. Schroeder, 196 Mo. 281; Henry County v. Salmon, 201 Mo. 136; City of St. Louis v. Shields, 62 Mo. 251; Bradley v. Reppell, 133 Mo. 545; Father Matthews v. Fitzwilliams, 12 Mo.App. 445, affirmed, 84 Mo. 406; State to use Moutrey's Admrs. v. Muir, 20 Mo. 303; State ex rel. Jean v. Horn, 94 Mo. 162. (3) The Court of Appeals, had the opinion been correct on all other points, should have, after so holding, ordered the portion of the title to the case "Missouri State Highway Board to the use and benefit of" stricken therefrom, or treated such amendment as made, and in failing to do so is in conflict with the decisions of this court. Mechanics' Bank to use of Davis v. Gilpin, 105 Mo. 17; State ex rel. Bell v. Fidelity & Guaranty Co., 236 Mo. 352; Ehrlich v. Mittelberg, 299 Mo. 284; Mueller v. Kaessmann, 84 Mo. 318; Cruchon, Admx. v. Brown, 575 Mo. 38; State ex rel. Railroad Co. v. Hirzel, 137 Mo. 435. (4) Had the opinion of the Court of Appeals been correct in all other respects, then plaintiff yet had the right to amend its petition, and in denying that right by reversing the judgment and cutting that right off the opinion is in conflict with the decisions of this court. Lilly v. Tobbein, 103 Mo. 477; Clayton v. Transit Co., 205 Mo. 692; State ex rel. Lonydon v. Shelby, 75 Mo. 482.

Owen & Davis for respondents.

(1) The holding of the Court of Appeals that said Missouri State Highway Board was non-existent at the time of the execution of the contract for the construction of said project and at the time of the execution and approval of said bond, and that the petition did not state facts sufficient to show a right of recovery in the name of said highway board to the use of relator, and that defendant was not estopped to challenge the existence of said board and its right to judgment, is not in conflict with the decisions of this court. (2) The decision of the Court of Appeals that defendant was not estopped to question the validity of said bond, and that the petition did not state a right of recovery in plaintiff to relator's use, nor in relator, is supported by the case of Douthitt v. Stinson, 63 Mo. 268. (3) The petition in the original suit shows upon its face that the contract for the construction of Project 81 was let in the name of the highway board, the contract therefor executed in the name of said board, and that the bond in question was made payable to said board. Said board was not a body corporate, with power to sue and be sued, and it had no capacity power or authority to enter into a contract in its own name, and all contracts entered into in its name are void. It is elementary that a contract to be binding, the parties thereto must have the legal capacity to contract. MacFarlane v. Heim, 127 Mo. 334; Musick v. Dodson, 76 Mo. 624. A judgment rendered for or against a party after his death is absolutely void. Heaton v. Hamilton, 277 Mo. 540; Cole v. Parker, 276 Mo. 220. A judgment for or against a corporation which has ceased to exist is void. Park Co. v. Gibson, 268 Mo. 403. (4) In actions under a statute, suit must be brought by the person or persons therein designated, and if the suit is not so brought, the petition in such case fails to state facts sufficient to constitute a cause of action and a right of recovery in the plaintiff, and is subject to a general demurrer, and advantage thereof can be taken at any time and in any court. Gruender v. Frank, 267 Mo. 713; Clark v. Railroad Co., 219 Mo. 539; Packard v. Railroad Co., 181 Mo. 421; Barron v. Mo. L. & Co., 172 Mo. 228; Sells v. Railroad Co., 266 Mo. 155; Betz v. Ry. Co., 284 S.W. 455. (5) The decision of the Court of Appeals, holding that defendant Surety Company did not waive the question of the right of the Missouri State Highway Board to prosecute said suit and recover judgment therein, by answering over after its demurrer to the petition had been overruled, is not in conflict with the decisions of this court. Buder v. Brand, 305 Mo. 321. (6) The failure of the Court of Appeals to order stricken from the title of the cause the words "Missouri State Highway Board to the use and benefit of," or to treat such amendment as made, is not in conflict with the decisions of this court cited. Had such a request been made and overruled, such ruling would not be in conflict with the decisions in those cases. If the Court of Appeals had treated the amendment as made, yet the petition would not state a cause of action and right of recovery in relator, as the nullity of the bond appears on the face of the petition.

OPINION

Ragland, J.

This is an original proceeding in certiorari wherein the relator seeks to have quashed, on the ground of conflict, the record of the Springfield Court of Appeals in a case entitled: "Missouri State Highway Board for the Use and Benefit of the Fredonia Portland Cement Company, respondent, v. Southern Surety Company, appellant," lately pending before it on appeal from the Circuit Court of Jasper County. The ruling of the Court of Appeals and the facts on which it was based appear from its opinion which follows:

"This is an action on a surety bond executed in connection with a road construction contract. The cause was tried before the court without a jury. Relator recovered and defendant surety company appealed.

"The petition was filed against the Carterville Construction Company, Southern Surety Company and several individuals, but the record here does not disclose what disposition was made as to defendants other than the Surety Company.

"The petition alleges that on March 20, 1922, defendants, other than the Surety Company, entered into a contract with the Missouri Highway Board for the construction of about five miles of highway running from Clinton, Henry County Missouri, and known as Project 81; that the defendant executed and delivered to the Missouri Highway Board a bond in the penal sum of $ 88,736, wherein and by the terms of which defendant bound itself to pay all lawful claims for materials furnished in the construction of said highway; that relator, Cement Company, between October 24, 1923, and June 13, 1924, sold and delivered to the contractor, Carterville Construction Company, cement of the reasonable value of $ 10,473.90, which cement was used in the construction of said highway; that only $ 4,398.98 on said account had been paid, leaving a balance due the Cement Company of $ 6,076.92, with interest from January 1, 1925.

"Defendant Surety Company, after its demurrer to the petition was overruled, answered by admitting the execution of the bond, and denied generally other allegations. Further answering defendant averred that if the Carterville Construction Company was indebted to the Cement Company on account of cement or other supplies in the construction of said highway, the Construction Company on December 18, 1923, without the knowledge or consent of defendant Surety Company executed and delivered to relator Cement Company its certain promissory note payable in sixty days to the Cement Company for the sum of $ 4060.60; that said note was given in payment of the account to the extent of the note; that at the maturity of the note the Cement Company, without the knowledge or consent of defendant, extended said note for sixty days. Defendant further avers that the Carterville Construction Company without the knowledge or consent of defendant executed and delivered to the Cement Company another note in payment of the balance of the account, which last-mentioned note was due in sixty days from date, and was for $ 789.25; that the Cement Company when the last-mentioned note fell due, without the knowledge or consent of defendant, extended said note for sixty days. It is averred in effect that by reason of the acceptance of the notes the Cement Company released defendant Surety Company on its surety obligation.

"Relator replied by a general denial and alleged that defendant Surety Company was a surety for hire and was protected by collateral security from the Construction Company. Defendant moved to strike the reply, except the general denial, but the motion was overruled.

"Error is assigned (1) on the overruling of the demurrer to the petition; (2) on the refusal of the demurrer to the evidence at the close of the case; (3) on the refusal of certain declarations requested; (4) on the admission of evidence; and (5) on the overruling of the ...