Steckdaub v. Wilhite

• Decision Date: 05 May 1919
• Docket Number: No. 13218.,13218.
• Parties: STECKDAUB v. WILHITE.
• Court: Missouri Court of Appeals

211 S.W. 915

STECKDAUB v. WILHITE.

No. 13218.

Kansas City Court of Appeals. Missouri.

May 5, 1919.

Appeal from Circuit Court, Boone County; D. H. Harris, Judge.

"Not to be officially published."

Action by D. C. Steckdaub against It. L. Wilhite. Judgment for plaintiff, and defendant appeals. Affirmed.

Ralph T. Finley, of St. Louis, for appellant.

N. T. Gentry, of Columbia, for respondent.

TRIMBLE, J.

The defendant sold certain land to plaintiff, to a portion of which one Harriet McQuitty laid claim, and it was agreed between plaintiff and defendant that the former should stay in possession of said land and contest or litigate any suit Harriet might bring, and defendant would pay all court costs, expenses, damages, and attorney's fees connected therewith, and hold plaintiff harmless from all loss or damage on account of the pendency of said suit. To secure said agreement, defendant gave plaintiff an indemnifying bond in the sum of $2,500 conditioned that, in the event Harriet McQuitty brought suit or suits, the defendant should "pay all expenses, attorney's fees, court costs, and damages by reason of such suit or suits, and hold and keep said Steckdaub harmless by reason of having purchased said forty acres, and free from all loss."

Harriet McQuitty brought the suit, and plaintiff was compelled to pay out attorney's fees and expenses and suffered loss in connection therewith and as a result thereof. This action is to recover certain items of loss which the plaintiff claims he has suffered by reason thereof. The answer was a general denial. A trial resulted in a verdict assessing plaintiff's damages at $508.50 and a judgment based thereon, from which defendant has appealed.

At the commencement of the trial, after plaintiff's counsel had made his opening statement, defendant orally moved the court to dismiss the action as prematurely brought and as being a splitting of his cause of action. This was overruled, and such ruling is now complained of. The opening statement is not preserved in the record; hence its sufficiency is not before us. If the defect appeared on the face of the petition, a demurrer should have been filed; while, if the ground of the objection did not so appear, it should have been raised by answer. As neither of these things were done, the alleged defects have been waived. Section 1804, R. S. 1909.

The claim that a demurrer to the evidence should have been sustained is in no condition to be urged, since not all of the evidence was printed in the abstract. Reed v. Peck, 163 Mo. 333, 336, 63 S. W. 734. However, the evidence preserved in the record is ample to support a verdict and to prevent the trial court from properly sustaining a demurrer.

This is not an action on the covenant of warranty in a deed for breach of title; it is on a bond to indemnify plaintiff against all loss by reason of "expenses, attorney's fees, court costs, and damages by reason of" certain suit or suits. As soon as plaintiff was compelled to pay any expenses or attorneys, or suffered any loss thereby he had a cause of action...