Stone v. McConnell

• Decision Date: 02 June 1916
• Docket Number: No. 17644.,17644.
• Citation: 187 S.W. 884
• Parties: STONE et al. v. McCONNELL et al.
• Court: Missouri Supreme Court

187 S.W. 884

STONE et al. v. McCONNELL et al.

No. 17644.

Supreme Court of Missouri, Division No. 1.

March 30, 1916.

June 2, 1916.

Rehearing Denied July 3, 1916.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Robert S. Stone and others against Frederick R. McConnell and others. Judgment for plaintiffs, and defendants appeal. Affirmed as modified.

Metcalf, Brady & Sherman, of Kansas City, for appellants. Walsh, Aylward & Lee and George L. Davis, all of Kansas City, for respondents.

GRAVES, P. J.

Plaintiffs are suing defendants for commissions claimed to be due them for the sale of certain real estate belonging to the defendants. Several questions urged here require a discussion of the pleadings. The petition is not long, and the safest course is to set it out in full. It reads:

"Plaintiffs for their cause of action state that they are engaged in the real estate business, and that their principal office and place of business is located in Kansas City, Mo.

"Plaintiffs further state that on or about the 5th day of May, 1911, defendants were the owners of a certain tract of real estate situated in De Soto county, Fla., and known as the Indian Prairie tract, and containing one hundred eighty thousand (180,000) acres more or less, and while the owner of said real estate and on or about April 1, 1911, solicited plaintiffs to act as their agents in and for the purpose of procuring persons to purchase the same to enter into a contract of purchase thereof, upon such terms and conditions as the defendants and the purchasers procured might agree.

"Plaintiffs further state that it was orally agreed between the defendants at said time that the agents procuring purchasers as aforesaid should be paid a commission for procuring same of fifty (50) cents per acre for each acre of real estate sold as aforesaid.

"Plaintiffs further state that it was also orally agreed that the aforesaid commission of 50 cents per acre should be divided among the agents as follows, to wit: One-third to be paid to what the parties hereto termed the "Florida End," and two-thirds to what was termed the "Kansas City End." That the plaintiffs and Perry McCollough constituted the Kansas City end; that Perry McCollough was to be paid for his services, in connection with the aforesaid sale, such amount of that portion which was to be paid to the Kansas City end as the plaintiffs and said Perry McCollough might agree upon; that plaintiffs and Perry McCollough have agreed that defendants should pay the said Perry McCollough the sum of $12,833; and that plaintiffs have advised defendants of the said amount to be paid to said Perry McCollough. [And that defendants agreed to pay said sum of $12,833 to said McCollough.]

"Plaintiffs further state that it was also orally agreed that defendants were to deduct from the aforesaid commission the sum of 10 cents per acre for each acre sold, which amount deducted was to be paid to one named McCloughlin, provided the defendants were or became liable to the said McCloughlin for commission on account of the aforesaid sale; and plaintiffs further state that the defendants did not become liable to the said McCloughlin for commission as aforesaid.

"Plaintiffs further state that it was also orally agreed that the defendants were to deduct $20,000 from the aforesaid commission, which amount was to be paid to Jacksonville, Fla., agents for the land, provided that the defendants were or became liable to said agents on account of said sale; but plaintiffs further state that the defendants did not become liable to Jacksonville, Fla., agents as aforesaid.

"Plaintiffs further state that they acted upon the aforesaid solicitation and became the agents of defendants for the aforesaid purpose; that, in pursuance of and in full compliance with said agency, they procured Robert J. Martin and Joseph H. Borders as purchasers therefor, who were and still are ready, willing, and able to purchase and pay for said property as aforesaid; that the said Robert J. Martin and Joseph H. Borders and the defendants entered into a contract of purchase therefor on or about May 5, 1911, upon terms mutually agreeable to them and the defendants; that the said Robert J. Martin and Joseph H. Borders were and still are ready, willing, and able to perform said contract of purchase as aforesaid, but that, after said sale and agreement of purchase and sale, said Robert J. Martin and Joseph H. Borders caused an examination of the records to be made whereby it was disclosed that the defendants did not have good title to the said tract and could not carry out the terms of said sale of the contract of sale, and, for that reason and no other, said Robert J. Martin and Joseph H. Borders refused to consummate said sale and said contract of purchase.

"Plaintiffs further state that on account of the premises defendants are indebted to plaintiffs for the sum of $47,166, and that plaintiffs have demanded payment of defendants of the aforesaid sum, but that defendants have refused and still refuse to pay the same.

"Wherefore, plaintiffs pray judgment against defendants in the sum of $47,166, and for interest thereon at the rate of six per cent. (6%) from May 5, 1911, and for the costs of this action."

The answer was a general denial in the very shortest form. The clause in brackets and underscored in the foregoing petition was an amendment to the petition permitted by the court after the close of all the evidence, so as to make the petition conform to the proof, as claimed here by the plaintiffs.

Under the instructions of the court the jury returned a verdict for plaintiffs in the sum of $49,336.15, and from the judgment entered on such verdict, the defendants have appealed. The assignment of error here is:

"(1) The court erred in overruling the defendants' objection to the introduction of any evidence under the petition.

"(2) The court erred in overruling the defendants' demurrer to the evidence at the close of plaintiffs' case.

"(3) The court erred in overruling the defendants' demurrer to all the evidence at the close of the case.

"(4) The court erred in permitting the plaintiffs to amend their petition as it was amended at the close of the case.

"(5) The court erred in overruling the defendants' motion to strike the petition as amended from the files.

"(6) That the court erred in giving instructions Nos. 1, 5, and 6, as asked by the plaintiffs."

Clauses 1, 2, and 3 of the above assignment of error go to the same question. Counsel for appellants so state in their brief. They say in their statement of the case:

"Upon plaintiffs' offer to introduce testimony at the opening of the case, the defendants objected to any evidence under the petition, for the reason the petition, upon its face, shows a suit pending upon a joint contract where all the joint obligees were not parties, plaintiff or defendant, and that the plaintiffs had no legal capacity to sue. (Record, 26.) At the close of plaintiffs' case (Record, 266) and again at the close of the whole case (Record 559) the defendants offered demurrer to plaintiffs' evidence upon the same ground. This objection and these demurrers were overruled by the court, who immediately thereafter, and over defendants' objection, permitted plaintiffs to amend their petition by interlineation as follows."

The fourth and fifth clauses go to a single question, as is evident from a reading thereof. The sixth goes to error in giving instructions. Upon these assignments we have but three questions for consideration. This sufficiently outlines the case.

I. The first three assignments of error, as will appear from our statement, go to the one question, i. e., that there is a defect in the parties plaintiff. This was the chief battle line pitched below, but in our judgment pitched too late. It should be noted that the defendant answered by a simple general denial. A defect of parties plaintiff or defendant is not suggested in this answer. Section 1800, R. S. 1909, so far as applicable, reads:

"The defendant may demur to the petition, when it shall appear upon the face thereof, either: * * * or, fourth, that there is a defect of parties plaintiff or defendant."

Under this section, if the defect appears upon the face of the petition it must be raised by demurrer, and if an answer is filed it is waived, unless preserved in the answer. This section 1800, supra, is supplemented by section 1804, R. S. 1909, which reads:

"When any of the matters enumerated in section 1800 do not appear upon the face of the petition, the objection may be taken by answer. If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court over the subject-matter of the action, and excepting the objection that the petition does not state facts sufficient to constitute a cause of action."

In our statement of the case we have quoted in full from appellants' statement of the case, which shows the exact objections to this petition. These objections do not go to the jurisdiction of the court over the subject-matter of the action, nor do they go to the point that the petition states no cause of action. In other words the parties did not undertake to bring themselves within the exceptions stated in section 1804, supra. This was no doubt for the very good reason that the petition did not fall within either of the exceptions contained in the statute. Under the statutes aforesaid, and under an unbroken line of cases in this state, even if there was a defect of parties, the matter was waived by the action of the defendants in filing a general denial, and proceeding to a trial upon such an answer. Crenshaw v. Ullman, 113 Mo. loc. cit. 637, 638, 20 S. W. 1077; Hudson v. Wright, 204 Mo. loc. cit. 424, 103 S. W. 8; Gardner v. Robertson, 208 Mo. loc. cit. 606, 106 S. W. 645; McKee v. Downing, 224 Mo. loc. cit. 129, 124 S....