Sumner v. Rogers
| Decision Date | 20 December 1886 |
| Citation | 90 Mo. 324 |
| Parties | SUMNER v. ROGERS, Adm'r, etc. |
| Court | Missouri Supreme Court |
Appeal from St. Louis court of appeals.
The plaintiff in this action alleges that he was surety on a note executed December 7, 1869, for $22,000, payable to defendant; that Merrick & Stickney were the principal makers; that they received whatever consideration went to support the note. The note was secured by mortgage on 1,590 acres of land in St. Charles county, Missouri, half of which belonged to plaintiff. As further security Merrick & Stickney assigned all benefits accruing to them from a drainage contract obtained from St. Charles county. Under this assignment, about $30,000 of St. Charles county bonds were delivered to defendant. Defendant did not apply these bonds to the payment of the note, but fraudulently, and in disregard of plaintiff's rights, devoted them to other uses. Defendant, conspiring with others to cheat and defraud plaintiff, and without plaintiff's knowledge or consent, did, on November 8, 1870, execute a deed of release to Benjamin and Cyrus Smith of Merrick & Stickney's undivided one-half interest in the 1,590 acres of land in St. Charles county, and on the same day caused Merrick & Stickney to execute to the Smiths a warranty deed of said lands, and that the Smiths then paid to defendant a large sum of money, amounting, plaintiff believes, to $21,000; but none of that money was ever credited on said $22,000 note. That on the tenth January, 1873, defendant, knowing that plaintiff was ignorant of the assignment of the bonds and the sale of land as stated, began calling on him for money, and plaintiff, being misled and fraudulently deceived as to his liability on said notes, paid defendant $1,100, said to be due for a half year's interest thereon, for which sum, with interest and costs, he asks judgment.
For a second cause of action plaintiff states that defendant, by fraudulent misrepresentations of their value, as of the sum of $22,000, induced plaintiff to purchase from him certain notes and mortgages on Kansas lands, and the note on which he was surety, for $35,000; that the notes and mortgages other than the one on which he was surety were only worth $13,000. Plaintiff repeats the statement in the first count as to the acts of defendant releasing plaintiff from liability on the $22,000 note. He asks judgment for $22,000, with interest and costs, on this count.
Defendant, in his answer, admits that Merrick & Stickney and plaintiff executed and delivered their joint and several note to defendant for $22,000, and secured the same as alleged; that Stickney had a contract with St. Charles county to drain lands in said county; that Stickney completed said contract; and that defendant released Merrick & Stickney's undivided half of said lands, conveyed to defendant as part security for said $22,000 note; that plaintiff paid him six months' interest on said note, amounting to $1,100. The defendant denies each and every other allegation of the complaint.
Evidence was given at the trial tending to show that plaintiff had no knowledge of the release of Merrick & Stickney's share of the St. Charles county land mortgaged, at the time he paid the $1,100, nor until he paid the last $4,000 on the $35,000 payment set up in the second count of the complaint; that he only paid that note after notice, because it was owned by an indorsee of defendant, and not by defendant. There was evidence tending to show the payment of the $35,000 as alleged, and for the purpose stated; also tending to show that the consideration for the $22,000 note was paid to Merrick & Stickney, and that plaintiff received no part of it; that defendant refused to let Merrick & Stickney have the money unless plaintiff joined them in executing the note. Judgment of nonsuit was rendered. Plaintiff appeals.
E. T. Allen, for respondent, Sumner. S. P. Galt, for appellant, Rogers, Adm'r, etc.
Both counts in the petition were for causes of action arising ex delicto, and so they were treated by plaintiff's counsel, who insisted on the trial that the action was for deceit. It was upon this ground alone that the circuit court permitted the trial to proceed. At the conclusion of the evidence, however, the court gave instructions that, on the pleadings and evidence, the plaintiff was not entitled to recover on either count, and thereupon the plaintiff took a nonsuit, with leave, etc., and, failing to set the nonsuit aside, appealed to the St. Louis court of appeals, where the judgment of the lower court was reversed. The grounds on which this was done, were that there was enough in the first count of the petition to make a good cause of action for money had and received, and that the defendant, by failing to demur on the ground of misjoinder, had waived the objection, and therefore was not at liberty to raise such objection at a subsequent period. Rev. St. § 3515.
Though our statute has denominated every suit brought under the Code “a civil action,” (section 3461,) yet this provision only relates to the form of the action, not to its substance. This is plainly shown by the provisions of section 3515, supra, which allows a demurrer because of several causes of action having been improperly united; and by section 3519, allowing advantage to be taken of such defect by answer when the same does not appear on the face of the petition, and cannot, therefore, be taken by demurrer; and furthermore by section 3512, which prescribes what causes of action may be united in the same petition,-- e. g., contract express or implied, or injuries with or without force, etc.,--and specially providing that such “causes of action, so united, must all belong to one of these classes.” These statutory provisions leave no room to doubt that the old common-law distinctions between actions ex contractu and ex delicto are still in substance retained by the Code; for otherwise the provisions quoted would be devoid of meaning.
Notwithstanding the Code, a party cannot sue on one cause of action, and recover on another,--cannot sue for an injury, and recover on a contract express or implied, or vice versa; so that while, under the statute, a party defendant can only take advantage of a petition which unites incongruous causes of action by demurrer or by answer, and waives such defect by failing to take such objection, yet such waiver does not extend beyond this; that no further objection can be taken on that score to the petition considered merely as a pleading, but does not deprive the defendant from insisting that the evidence shall correspond with the allegations, and be confined to the point in issue. There may be cases, and doubtless are, where a cause of action ex contractu may have connected with it some averments as to fraud, etc., which may be disregarded as surplusage; but this is not a case of this sort, nor was it so...
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