Thompson v. Stearns
| Decision Date | 08 November 1921 |
| Citation | 234 S.W. 1059,208 Mo.App. 338 |
| Parties | WILLIAM B. THOMPSON and FORD W. THOMPSON, a Co-partnership, doing business under the firm name W. B. & FORD W. THOMPSON, Respondents, v. E. G. STEARNS, HENRY C. GARNER, TRUSTEE and W. F. RATH, Defendants, E. G. STEARNS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon Charles B. Davis, Judge.
AFFIRMED.
Judgment affirmed.
John A Blevins for apellant.
(1) The petition does not state a cause of action. There is no allegation in the petition that plaintiffs performed their part of the contract sued on. 31 Cyc., page 107; 9 Cyc., page 719; Bayse v. Ambrose, 32 Mo. 484; Beckman v Ins. Co., 49 Mo.App. 604. (2) The demurrer to the petition should have been sustained. (3) The court erred in overruling defendant's motions to make the petition more definite and certain. Sec. 1815, R. S. 1909; Davis v. Railroad, 126 Mo. 78. (4) It was the duty of the plaintiffs to allege and prove that the contract was fully performed by them and that it was reasonable and just that the amount demanded was the reasonable value of the services rendered. In the absence of such allegations in the petition and proof to correspond therewith plaintiffs cannot recover. 4 Cyc. 960; White v. Tolliver, 110 Ala. 300; Haight v. Moore, 37 N.Y.S. 161; Carleton v. Dustin, 9 Ohio 51, Cent. L. B. 294; Rose v. Mynatt, 7 Yerg. Tenn. 30; Thomas v. Turner, 87 Va. 1, 12; Brock v. Barnes, 40 Barb. 521; Nusan v. Payne, 2 Ves. 200; Dickson v. Bradford, 59 Ala. 581; Waterbury v. City, 68 Tex. 565; Bolton v. Daily, 48 Iowa 348; State v. Standard Oil Co., 194 Mo. 124; Barrett v. Ball, 101 Mo.App. 288; Morrow v. Pike Co., 189 Mo. 610. (5) The contract sued on having been made after the fiduciary relation had commenced and while it was still in existence did not relieve plaintiffs from alleging and proving the performance of the contract and that the amount demanded for their services was reasonable and just. (6) Upon the whole record the judgment below should be reversed. Shinn on Garnishment,--Ed. 906; Geist v. City of St. Louis, 156 Mo. 643; Martn et. al. v. Michael et. al., 23 Mo. 50; Bank of Odessa v. Barnett et al., 98 Mo.App. 477; Paddock-Hawley Iron Co. v. McDonald et al., 61 Mo.App. 559; Pendleton v. Perkins, 49 Mo. 569; 20 Cyc. 993; Coleman v. The American Fire Ins. Co., 74 Mo.App. 663; Johnson v. Geneva Pub. Co., 122 Mo. 102; Potter v. The Conqueror Trust Co., 95 Mo. 113; Birtwhistle v. Woodward, 95 Mo. 113; Heaton v. Dickson, 153 Mo.App. 312. (7) The defendant, Stearns, was entitled to a trial by jury as a matter of law and the refusal of the court to grant him such trial was error for which the judgment should be reversed. Constitution of Mo., sec. 28, art. 11; Minor v. Burton, 228 Mo. 558; Kansas City v. Smith, 238 Mo. 323; Froein v. Poage, 231 Mo. 82. (8) Under the allegations of the petition plaintiffs were not entitled in any event to recover more than $ 3,000 and interest.
Albert D. Nortoni for respondents.
(1) Defendant's demurrer was and is waived by answering over. Hubbard v. Slavens, 218 Mo. 598; Paddock v. Somes, 102 Mo. 226; Rogers v. Western Home Ins. Co., 93 Mo.App. 24; Hurst v. City of Ash Grove, 96 Mo. 168. (2) Defendant's motion to require the petition to be made more definite and certain was and is waived by answering over. Thompson v. Stearns, 197 Mo.App. 344; Eweing v. Vernon Co., 216 Mo. 681; White v. St. Louis, etc., R. R. Co., 202 Mo. 539. (3) The bill states a cause of action in equity as in equitable garnishment. The following authorities are directly in point: Pendleton v. Perkins, 49 Mo. 565; Humphres v. Atlantic Milling Co., 98 Mo. 542; Webb & Co. v. Midway Lumber Co., 68 Mo.App. 546; Heaton v. Dickson & Trust Co., 153 Mo.App. 312; 5 Am. & Eng. Enc. of Law, 523. (4) That property held in trust for the benefit of another is not subject to attachment, garnishment or execution at law, is not open to question, for the reason the trustee holds the legal title and the beneficial use is an equitable interest, and, therefore, the home of the trust is in equity. This alone, without the non-residence of Stearns, would be sufficient to sustain this bill. In such circumstances the equitable interest of the debtor can only be reached by a bill in equity in the nature of an equitable garnishment. Pickens v. Darris, 20 Mo.App. 1; McIlvain v. Smith, 42 Mo. 45; Lackland v. Garesche, 56 Mo. 267; Lackland v. Smith, 5 Mo.App. 153; Drake on Attachments, section 487; 5 Enc. Plead & Pract., 454, also 439. (5) The evidence not being brought up in the bill of exceptions, it will be presumed on appeal that such evidence supports the bill and every finding of fact set forth. Pendleton v. Hubbard, 231 Mo. 314. (6) There is no right of trial by jury in equitable causes as a matter of right, in the first instance, as in cases at law. Ellis v. Kruetzinger, 31 Mo. 432; Weil v. Kume, 49 Mo. 158; Grand Lodge v. Elsner, 26 Mo.App. 112; Pendleton v. Hubbard, 231 Mo. 314. "And the fact that the suit is for a money judgment does not change the rule," says the court in Weil v. Kume, 49 Mo. 158. Grand Lodge v. Elsner, 26 Mo.App. 112. (7) The bill states a cause of action in equity and the question now raised against it is res adjudicata, in that it was expressly decided by the St. Louis Court of Appeals, a court of competent jurisdiction, on this indentical bill between these same parties, in this same case, and that judgment has long since become conclusive. This is not an appeal from that court and it was a competent tribunal to decide that question. Knisely v. Leathe, 178 S.W. 453; Thompson v. Stearns, 197 Mo.App. 344; Finer v. Nichols, 175 Mo.App. 525; Little v. McAdams, 38 Mo.App. 187. (8) although the cause of action be defectively stated and a material fact which should have been stated therein is omitted, nevertheless, after judgment, the bill will be sustained if by gathering and utilizing all of the intendments, implications and reasonable inferences which the facts stated afford, a cause of action may be made out. Thompson v. Stearns, 197 Mo.App. 344; Peoples Bank v. Scalzo, 127 Mo. 164; Thomasson v. Mercantile Ins. Co., 217 Mo. 485; Thomasson v. Mercantile Ins. Co., 114 Mo.App. 109; Murphy v. Ins. Co. , 70 Mo.App. 78; Salmon Falls Bank v. Leiper, 116 Mo. 51; Hurst v. City of Ash Grove, 96 Mo. 168; Finer v. Nichols, 175 Mo.App. 525; Munchow v. Munchow, 96 Mo.App. 553; Secs. 1550, 1551, 1276 and 1513, R. S. 1919. (9) The Statute of Jeofails, sec. 1550, Revised Statutes of 1919, expressly provides that no judgment shall be reversed: "Eighth, for the want of any allegation or averment on account of which omission a demurrer could have been maintained." Also, no judgment shall be reversed: "Ninth, for omitting any allegation or averment without proving which the triers of the issue ought not to have given such a verdict." (a) Under the eight and ninth provisions last above referred to of this statute, section 1550, R. S. 1919, it is always held that a defect such as that above referred to is cured after judgment as is contemplated by the statute, the doctrine resting upon the presumption "that plaintiff proved on the trial the facts imperfectly alleged, the existence of which was essential to his recovery." Thomasson v. Mercantile Ins., Co., 217 Mo. 485; Thomasson v. Mercantile Ins Co., 114 Mo.App. 109; People Bank v. Scalzo, 227 Mo. 164; Heman v. Allen, 156 Mo. 534; Thompson v. Stearns, 197 Mo.App. 344. (10) It is the established law that when the full performance on the part of the attorney at law of his contract is prevented by the act of his client, as here, the law treats the partial performance as full performance and fixes the attorneys' compensation at the contract price of the hypothesis of such full performance. The authorities are directly in point and conclusive on this question. See Kersey v. Garton, 77 Mo. 645; McElhinney v. Kline, 6 Mo.App. 94; Hunt v. Test, 8 Ala. 713; Reynolds v. Clark County, 162 Mo. 680; State ex rel. v. Butler County, 164 Mo. 214; McCall v. Atchley, 256 Mo. 39; 4 Cyc. 948.
This action was instituted in the Circuit Court of the city of St. Louis, on the eighth day of December, 1913, by William B. Thompson and Ford W. Thompson, attorneys, against the defendants, in which they seek to collect an attorney's fee alleged to be due them as co-partners. This is the second appearance of this case here. On the first trial there was a decree entered in favor of plaintiffs for $ 3153, which amount was declared a lien upon the equitable interest of defendant Stearns, and the property held by Garneau as trustee to the use of Stearns. From this judgment both parties appealed. [See Thompson v. Stearns, 197 Mo.App. 344, 195 S.W. 43.]
On the former appeal the cause was reversed and remanded.
On March 4, 1918, after the cause had been remanded, defendant Stearns filed a motion for trial by jury, on the theory that the suit was one at law. This motion was overruled. On March fourteenth following Stearns filed an amended answer, and on the same date filed a motion to take the opinion of the jury in aid of the chancellor. On October 19, 1919, the court tried the case with the aid of this jury, and submitted the issues of fact:
First, whether or not plaintiffs had agreed, prior to March, 1913, to perform the services for $ 1000, which question was answered in the negative by the jury.
Second, what was the reasonable value of the services rendered by plaintiffs? To this question the jury answered $ 5000.
On December fifteenth following there was a trial by the court and the finding and decree was for plaintiffs for $ 4000 with interest, and declaring the same an...
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