Want v. Leve, 38309

• Citation: 574 S.W.2d 700
• Decision Date: 24 October 1978
• Docket Number: No. 38309,38309
• Parties: Albert WANT, Plaintiff-Appellant, v. Louis LEVE and Rubin Leve and Century Supply Company, a corporation, Defendants-Respondents. . Louis District
• Court: Court of Appeal of Missouri (US)

Page 700

574 S.W.2d 700

Albert WANT, Plaintiff-Appellant, v. Louis LEVE and Rubin Leve and Century Supply Company, a

corporation, Defendants-Respondents.

No. 38309.

Missouri Court of Appeals, St. Louis District.

Oct. 24, 1978.

Jay R. Burns, Bridgeton, for plaintiff-appellant.

Stanley E. Goldstein, Clayton, for defendants-respondents.

PER CURIAM.

Albert Want, the plaintiff in the trial court, appeals from a judgment of the Circuit Court of the City of St. Louis entered after the respondents' motion for judgment on the pleadings had been sustained on the grounds that the five year statute of limitations, § 516.120 RSMo. 1969 had run and the cause of action was thereby barred. The central issue is whether plaintiff's Third Amended Petition, filed on March 13, 1975, relates back to the commencement of the cause of action and thereby avoids the limitations bar. For reasons hereinafter stated we hold that it did and the judgment of the trial court must be reversed and the cause remanded.

Mr. Want, the appellant, filed Cause No. 14599-F, a three count petition in the office of the Circuit Clerk for the City of St. Louis on April 9, 1970. In this petition the defendant named in the caption of the petition was "Century Supply Company, c/o Mr. Louis Leve, Registered Agent, 1107 Franklin Avenue, St. Louis, Missouri." Count I of the petition sought damages for breach of contract; Count II for unjust enrichment; and Count III for breach of a partnership agreement between the plaintiff and "defendant." According to the allegations of this petition the "defendant company" hired the plaintiff to serve both as a salesman and to take an integral part in the "defendant company's" business on or about April 5, 1969, and "after seven months of plaintiff's services" (November, 1969), discharged him. Despite the fact that the term "defendant" was used throughout the petition, in all Counts, there was no allegation whether the "company" was a corporation, a partnership, or a sole proprietorship, nor were there any allegations whatsoever from which one could glean its legal status.

According to the Return of Service of Summons the deputy sheriff certified that he had served a copy of the summons and a copy of the petition on the "Century Supply Co., Mr. Louis Leve, Reg. Agent" in the City of St. Louis on the 13th day of April, 1970. On April 25, 1970, an Answer was filed in the case by the "above alleged defendant Century Supply Company" wherein the defendant denied each and every allegation in the plaintiff's petition. This Answer bore the signature of C. Marshall Friedman, of the law firm of Gray and Friedman, and a copy of same was forwarded to plaintiff's attorney of record.

On May 15, 1970, plaintiff filed a motion for the inspection of books and papers. Notice was served on defendant's attorney of record that the motion would be called up on the 26th day of May, 1970. On May 21, 1970, the defendant's attorney of record filed a motion to dismiss plaintiff's petition on the grounds: (1) that the claim was barred by the Statute of Frauds, § 432.010 RSMo. 1969, and (2) that breach of an employment contract for an indefinite term gave rise to no cause of action, and simultaneously filed "Defendant's Objection to Plaintiff's Motion for the Inspection of Books and Papers" on the grounds that it was a fishing expedition and exceeded the discovery contemplated by § 510.030 RSMo. 1969. On May 26, 1970, the plaintiff retaliated by filing its Motion to Strike Defendant's Motion to dismiss and to overrule said motion, on the grounds it was not timely filed, and for other reasons not pertinent to the issues before us in this appeal.

Thereafter, on the same day, May 26, 1970, the defendant, by leave of court, amended its Answer by adding to Counts I, II and III an allegation "that Plaintiff's motion is barred by the Statute of Frauds." The defendant's motion to dismiss was argued and time for the filing of briefs by the parties was granted. On May 28, 1970, the "Defendant's" Motion to Dismiss was sustained without prejudice to plaintiff's filing of an amended petition. No time limitation was set by the trial court within which plaintiff might file his amended petition.

On June 13, 1970, the plaintiff instituted a new cause of action, Cause No. 16058-F, in the Circuit Court of the City of St. Louis. This petition, also in three counts, sought judgment for unjust enrichment, breach of contract, and breach of partnership agreement in Counts I, II and III respectively. In the caption of this petition the defendant was also identified as "Century Supply Company, c/o Mr. Louis Leve" etc. and, as in the prior petition was referred to as the "defendant company" or just as the "defendant." Except for changing the order in which plaintiff stated his claims in the petition, it was essentially the same as the previous one. The date of the breach of contract or of the wrongful discharge was again alleged to have occurred "seven months" after the plaintiff commenced performing his services under the oral contract entered into on or about April 5, 1969. The Sheriff's return on the summons in this case showed that service was had on "the Century Supply Co., a corp. (a corporation)" on June 17, 1970, by delivering a copy of the "writ and petition" to "Louis Leve, Reg. Agent" of the said defendant corporation, in the usual business office and in charge thereof and recited further that the President or other Chief Officer of the defendant could not be found in the City at the time of service.

On June 22, 1970, the "defendant" Century Supply Company, filed a Motion to Dismiss pointing out that the allegations contained in this petition were identical to those previously ruled on in Cause No. 14599-F and that therefore the cause of action was barred by reason of res judicata, by the Statute of Frauds, and further alleged that the plaintiff failed to state a claim upon which relief could be granted. On July 29, 1970, argument on this motion, by agreement of counsel, was reset at an unspecified future date; and on September 11, 1970, argument on the motion to dismiss was passed to be reset on request of the attorneys of record because of lack of time to hear. Both parties filed suggestions in support of their respective positions with respect to the motion to dismiss and subsequently on October 28, 1970, plaintiff again filed a motion for the inspection of books and papers of the "defendant," which would shed light on his allegations that by his efforts he caused an increase in the gross income of the "defendant company." This motion provoked defendant's objection on the grounds that the order in the prior case was res judicata on this point and that plaintiff's petition was barred by the Statute of Frauds. Plaintiff thereupon amended his motion to inspect on November 6, 1970, and on November 13, 1970, defendant's motion to dismiss was argued, submitted and sustained. Plaintiff was granted leave to file an amended petition within ten days.

On November 20, 1970, plaintiff filed his First Amended Petition, this time a single count petition wherein the defendant was referred to as either the "defendant company" or simply the "defendant." This petition essentially alleged an oral contract entered into between the parties on or about April 5, 1969, whereby plaintiff would work as a salesman "and as an integral part of Defendant's wholesale plumbing supply business, taking a part in the basic operations of said business;" that he would be paid a 5% Commission on the business he brought the "Defendant company" and that plaintiff fully performed his part of the contract for seven months when he was unjustly discharged without good cause; that the "defendant" had been unjustly enriched and had failed to make restitution to the plaintiff or to account to him; that plaintiff was without an adequate remedy at law and had been irreparably injured to the extent of $3,600 expenses advanced by plaintiff and by an amount which could not be known to plaintiff unless the court ordered an accounting. The only allegation in this petition which was not present in Count II of the prior petitions the unjust enrichment count filed by plaintiff was that he and the "defendant" agreed to publicize the contract between the parties to plaintiff's business associates, and that, in furtherance of the contract, said notice proclaimed to plaintiff's associates that he was now affiliated with "defendant company." The prayer of this petition was for an accounting, that "defendant" be ordered to pay plaintiff 5% Commission on all business obtained by the "defendant" from business obtained by the plaintiff together with a lump sum for future commissions on said business; and further that business income of the "defendant" from the date of plaintiff's wrongful discharge be held in constructive trust for the plaintiff.

The defendant, "Century Supply Company," on December 22, 1970, retaliated with its Motion to Dismiss based on the same grounds as had been its prior motions to dismiss with respect to the previous petitions filed by plaintiff. On March 1, 1971, Defendant's Motion to Dismiss was sustained "with prejudice," because the plaintiff stated no ground for equitable relief and his claim was barred by the Statute of Frauds, § 432.010 RSMo. 1969. On the same date plaintiff filed his Notice of Appeal to the Supreme Court from the "Trial Court Order that 'Plaintiff states no ground for equitable relief and his claim is barred by Sec. 432.010 V.A.M.S.' "

This appeal was transferred to the Missouri Court of Appeals where the judgment of the trial court was reversed because of the possibility that the contract could have been performed within one year and its enforcement was not barred by the Statute of Frauds. The cause was remanded with directions to grant plaintiff leave to amend his petition to state a cause of action for recovery for the reasonable value of the services plaintif...