Summary
In Arpe v. Mesker Brothers Iron Company, 323 Mo. 640, 648, 19 S.W.2d 668, 670 (1929) this Court said: "The general rule is that an amendment will not have such effect if the proof necessary to support the pleading as amended is different from the proof necessary to support the same pleading before such amendment; for such an amendment would constitute a departure."
Summary of this case from Koerper Co. v. Unitel Intern., Inc.Opinion
August 6, 1929.
1. DISMISSAL: Setting Aside During Term. After a demurrer to the second amended petition has been sustained and the cause dismissed for failure to prosecute, the court has authority of its own motion to set aside the order of dismissal during the term at which the order was made. And for such purpose the court may treat the oral motion of the plaintiff as a mere suggestion.
2. APPEAL: Timely: Demurrer to Petition Sustained: Dismissal Set Aside: Formal Motion. Where a demurrer to the second amended petition is sustained on the ground that the cause of action is barred by limitations, and thereafter the cause is dismissed for failure to prosecute and at the same term said order of dismissal is set aside, the court is authorized to grant plaintiff an appeal from the order sustaining the demurrer on the day said order of dismissal is entered. The statute giving four days for the filing of a formal motion for a new trial is not controlling under such circumstances.
3. LIMITATIONS: Current Account: Last Item. If the last item of the current account on which plaintiff bases his cause of action accrued more than five years before he files his petition, with no other allegation therein fixing a later date for the accrual of the account, the cause is barred by limitations.
4. ____: ____: Accrual: Amendment: Performance. Plaintiff's petition alleged that he entered into a verbal agreement with defendant by which he was to be paid a commission on all contracts and orders which plaintiff would obtain from the Government for certain articles manufactured by defendant; that he secured from the Government various orders and contracts whereby the Government purchased from defendant various and sundry articles, on certain dates, at designated prices, setting out seventy such items; that "said contracts so secured were executed and performed by defendant during the years 1917, 1918 and 1919;" that defendant received full payment on said orders and contracts; and that plaintiff is entitled to a reasonable commission for his services in securing said contracts and orders. The date of the last purchase from the Government, as stated in the petition, was July 13, 1918, and the petition was filed September 22, 1923. In the second amended petition were added the words: "said commission to be payable upon acceptance and performance of said contracts and orders by defendant," which did not appear in the original petition. Held, that the cause of action as stated in the original petition was barred by the five-year Statute of Limitations at the time it was filed, and the amendment did not relate back to the filing of the original petition and save the cause from the bar of the statute. The original petition alleged that the commissions were due plaintiff in obtaining the orders by him from the Government, and did not allege that his commissions were dependent upon the performance of the contracts by defendant, as did the amendment; and assuming that the added words, if they had appeared in the original petition, would have saved the cause from the five-year bar, they did not save the cause which as stated in the original petition was barred before these words were added by amendment.
5. PLEADING: Limitations: Amendment: Departure: Different Proof. The general rule is that an amendment to a petition will not have the effect of so relating back to the time of filing the original petition as to save the cause from the bar of limitations, if the proof necessary to sustain the amendment is different from the proof necessary to support the pleading before amendment; but such amendment constitutes a departure.
Corpus Juris-Cyc. References: Dismissal and Nonsuit, 18 C.J., Section 148, p. 1209, n. 57. Limitations of Actions, 37 C.J., Section 232, p. 866, n. 3; Section 511, p. 1074, n. 30.
Appeal from Circuit Court of City of St. Louis. — Hon. Robert W. Hall, Judge.
AFFIRMED.
Thompson, Mitchell, Thompson Young and P.G. McElwee for appellant.
(1) Plaintiff alleges in his petition that he solicited and obtained many orders from the United States Government, and has set forth in the petition the dates that the orders were secured by him; but he further has alleged that his commissions would not become payable until defendant had fully performed and carried out the order. He states that they were executed and performed during the years 1917, 1918 and 1919. Any order executed or performed after September 22, 1918, would not be barred by limitation, and since the cause of action is on an account current, the time when said action on account current accrued is the date of the execution or performance of the last order, which plaintiff alleges took place in 1919. Chadwick v. Chadwick, 115 Mo. 581; Ring v. Jamison, 66 Mo. 424. (2) As to each order obtained by plaintiff herein there was a mutual unsettled open account, subject to a later settlement or adjustment if for no other reason than to arrive at what is a reasonable commission. And the fact that all items are on one side of the account does not render the account not a "mutual" account. Chadwick v. Chadwick, supra; Loveland v. Collins, 254 S.W. 22; Prague v. Mallory, 208 Mo. App. 401; 1 R.C.L. 207. (3) Plaintiff's petition is not multifarious. Peper Auto. Co. v. St. L.U.T. Co., 187 S.W. 111. (4) It is not plaintiff's duty in his petition to show that the contract is not barred by the Statute of Frauds. Mathews v. Wallace, 104 Mo. App. 98; Biest v. Shoe Co., 97 Mo. App. 149. In order to come within the statute, the contract must not only allow but require more than a year for its performance. Pitcher v. Wilson, 5 Mo. 46. (5) The code declares it the duty of the court "to distinguish between form and substance," to disregard any defects in the pleading which shall not affect the substantial rights of the adverse party, and provides that "in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties." Pleadings are construed most favorable to the pleader. Stillwell v. Hamm, 97 Mo. 579; Davis v. Jacksonville, 126 Mo. 69; Roy v. Bateler, 40 Mo. App. 213.
R.M. Nichols for respondent.
(1) The circuit court had no jurisdiction to set aside the judgmentment of nihil dicit entered at the October term (October 18, 1926), after the elapse of that term, at the December term of said court, and therefore this court is without jurisdiction to consider this appeal. Secs. 1550, 1527, R.S. 1919; Freeman on Judgments (3 Ed.) sec. 96; Ashby v. Glasgow, 7 Mo. 320; Hill v. St. Louis, 20 Mo. 584; State ex rel. v. Ross, 118 Mo. 47; Hall v. Lane, 123 Mo. 633; Lovitt v. Russell, 138 Mo. 474. (2) If there were any meritorious grounds for the setting aside of this judgment for dismissal, after the elapse of a month and a half, and after the term at which it was rendered had elapsed, the reason should have been embodied in a written motion and notice thereof given to the opposing party and not done by "oral application of plaintiff." The action of the court in setting aside the judgment of dismissal and reinstating said second amended petition and assigning the cause to Division No. 1, and adopting the entry of the demurrer sustained by another judge at a preceding term in the same division, all upon the oral and ex parte application of the plaintiff, was without jurisdiction and void. Secs. 1526, 1527, R.S. 1919; Hill v. St. Louis, 20 Mo. 584; Castilo v. Bishop, 51 Mo. 162; Billingham v. Miller F.C. Co., 115 Mo. App. 154. (3) Under the Practice Act oral motions are unauthorized; all motions must be in writing, specifying the ground upon which they are founded and are required to be filed one day before they are heard. Secs. 1268, 1267, R.S. 1919; Paddock v. Somes, 102 Mo. 226; White v. Railroad, 202 Mo. 539. (4) Even if the oral motion was a legal proceeding and it had been made within the term it was not within the four days allowed by the statute and, therefore, the court would have no jurisdiction to consider this appeal. State ex rel. Conant v. Trimble, 311 Mo. 128; Boegemann v. Bracey (Mo.), 285 S.W. 992; Marsella v. Marsella, 288 Mo. 501; State ex rel. Zeppenfeld v. Calhoun, 219 Mo. App. 485; Lemp v. Brewing Assn., 299 S.W. 844. (5) Appellant averred that the "U.S. Government purchased from defendant various and sundry articles and materials on or about the following dates and at the following prices, to-wit." Then follows "date and Mesker order number," "article and price" and "amount" and sixty-nine items of materials sold by respondent to the U.S. Government. Under the averments, "said commissions to be payable upon acceptance and performance of said contracts and orders by defendant," Mesker's order numbers, with the date, description of the article and price, and the amount of each article, would indicate "acceptance and performance of the contract and orders by defendant," upon each of which events "said commissions to be payable." Whether this suit be held to be a suit upon sixty-nine contracts stated in one count or a suit upon a quantum meruit, the action not having been begun until September 22, 1923, which was more than five years after the date of the last item and the last contract, which was July 13, 1918, the cause or the respective causes of action are barred by the five-year Statute of Limitation. Sec. 1317, R.S. 1919. (6) "Said commission to be payable upon acceptance and performance of said contracts and orders by defendant." "Said contracts so secured were executed and performed by the defendant during the years 1917, 1918 and 1919." Compare these averments with the following allegations as to the dates of rendition of services and accrual of liability: "Thereafter, and in reliance upon said agreement of employment he solicited orders . . . and secured orders and contracts . . . whereby the U.S. Government purchased from defendant various and sundry articles and materials on or about the following dates and at the following prices, to-wit." Then follows Mesker's order numbers, dates of purchases, description of articles and amounts, the last of which is under July 13, 1918. After the descriptive schedule and of dates and amounts, then follows this allegation: "That all of said articles and materials were furnished and sold by defendant to the U.S. Government for an amount aggregating approximately" $2,388,272.32. Then follows an averment that $90,000 "is a fair and reasonable commission for obtaining the contracts and orders from the U.S. Government, secured by plaintiff during the years 1917 and 1918." There can be no reasonable doubt from these averments that the pleader intended to aver that the services were rendered in 1917 and 1918; nor that the U.S. Government "purchased from the defendant the various and sundry articles and materials on or about the following dates and at the following prices, to-wit," because this schedule is followed by a further averment, "Said articles and materials were furnished and sold by the defendants to the U.S. Government." In view of the several allegations of service rendered, acceptance and performance of the orders, giving the exact date in the year 1917-1918, and in view of the fact that there is no allegation of either a date or performance in 1919, and that in no averment of the petition is the right of recovery of the commission placed upon the delivery of the materials to the Government or the payment therefor, the Court was justified in treating the additional statement of execution and performance in 1919 as an immaterial averment, as not an issuable fact, which, of course, would not be confessed by the demurrer and would not serve appellant's purpose of tolling the statute to 1919, after the date of the last contract averred by him as of July 13, 1918, and after the allegation that all of the contracts were accepted and performed by the defendant in 1917 and 1918. Sidway v. Stock Co., 163 Mo. 374; Verdin v. St. Louis, 131 Mo. 151; Lappin v. Nichols, 263 Mo. 285; 6 Ency. Plead. Prac. 255, 270; 13 Ency. Plead. Prac. 237. (7) The cause of action stated in the second amended petition, prior to the amendment of June 1, 1926, namely, "that the plaintiff should receive from the defendant, in addition to his salary, a reasonable commission on all contracts and orders which the plaintiff could obtain for the defendant from the U.S. Government," and following with the further averment that "reasonable commission for obtaining the contracts and orders for the defendant from the U.S. Government, secured by plaintiff during the years 1917 and 1918," stated a different cause of action, as to the accrual of respondent's liability, under the allegations of the second amended petition (before amendment), because the plaintiff would only be required to prove before the amendment the contract as stated and the services rendered during the years 1917 and 1918, but under the amendment of June 1, 1926, he would be required to prove, in addition to the contract alleged in the second amended petition, a further provision of the contract, to use the pleader's language in the amendment, "said commission to be payable upon acceptance and performance of the said contracts and orders by the defendant." The amendment therefore so changed the cause of action that it would not be an amendment of the original cause of action before the amendment and cannot be regarded as relating to the commencement of the suit, and would not save the cause of action stated in the petition before the amendment from the Statute of Limitation. Wasson v. Boland, 136 Mo. App. 622; McHugh v. Transit Co., 190 Mo. 85; Ross v. Land Co., 162 Mo. 317; Candy Co. v. Shenk, 195 Mo. 595; Clark v. Oregon Short Line, 38 Mont. 177; Gilmore v. Chicago, 224 Ill. 490; Freeman v. Railroad Co., 154 Ala. 619; Meinshausen v. Brewing Co., 133 Wis. 95. (8) Where the petition shows upon its face that the cause of action is barred by the Statute of Limitation, the defect may be reached by demurrer. Burrus v. Cook, 215 Mo. 496; Coudrey v. Gillam, 60 Mo. 86; Hennoch v. Chaney, 61 Mo. 129; St. Louis Gas L. Co. v. St. Louis, 84 Mo. 202; Grath v. Mottor, 248 Mo. 477; Petty v. Tucker, 166 Mo. App. 48; Canada v. Daniel, 175 Mo. App. 55. (9) Plaintiff's action being upon verbal contract, plaintiff could not recover upon a quantum meruit. Reifschneider v. Beck, 148 Mo. App. 725; Michael v. Kennedy, 166 Mo. App. 462; Bay v. Wank, 255 S.W. 324.
This is a suit upon an account for $90,000. The trial court sustained defendant's demurrer to plaintiff's (appellant's) second amended petition. Plaintiff refused to plead over, and judgment was entered dismissing his cause of action. Thereupon, he was granted an appeal to this court. The petition adjudged to be insufficient was as follows (Italics ours):
"Now comes Charles W. Arpe, plaintiff in the above-entitled cause, and by leave of court files this, his second amended petition herein.
"Plaintiff states that the defendant, Mesker Brothers Iron Company, is and at all times hereinafter mentioned was a corporation duly organized and existing under and by virtue of the laws of the State of Missouri, and duly authorized to do and is doing business in the city of St. Louis, Missouri.
"Plaintiff further states that he was in the employ of said Mesker Brothers Iron Company for several years prior to January 1, 1917, and that for two years prior thereto he was the general sales manager of said Mesker Brothers Iron Company.
"Plaintiff states that when the United States entered into the World War in 1917 the said Mesker Brothers Iron Company, acting by and through Frank Mesker, the vice-president thereof, on or about the 12th day of April, 1917, verbally employed the plaintiff upon a different basis from theretofore, and that it was thereupon agreed by and between the plaintiff and the said Mesker Brothers Iron Company that the plaintiff should receive from the defendant in addition to his salary a reasonable commission on all contracts and orders which the plaintiff would obtain for defendant from the United States Government; said commission to be payable upon acceptance and performance of said contracts and orders by defendant.
"Plaintiff states that the defendant was, and had been for some time, in the business of manufacturing various and sundry articles made out of iron and steel and other metals, and was equipped to manufacture and sell various and sundry materials needed by the United States in the equipment of its army; that among the things required by the United States for the prosecution of the war, and which the defendant was equipped to manufacture and sell, were army stoves, field ranges, ovens, tent pins, shelter hunts, boiling plates and other materials of a similar character.
"Plaintiff states that thereafter and in reliance upon said agreement of employment he solicited orders from the United States and secured orders and contracts from the United States Government, whereby the said United States Government purchased from the defendant various and sundry articles and materials on or about the following dates, and at the following prices, to-wit:"
(Here are set out about seventy items, beginning August 20, 1917, and ending July 13, 1918, each of which gives the date of the order, the order number, the article, the price and the amount. Such amounts range all the way from $6.06 to $555,200, and aggregate the sum of $2,388,272.32.)
"That all of said articles and materials were furnished and sold by defendant to the United States Government for an aggregate price of approximately two million three hundred eighty-eight thousand two hundred seventy-two dollars and thirty-two cents ($2,388,272.32).
"Plaintiff further states that said contracts so secured were executed and performed by the defendant corporation during the years 1917, 1918 and 1919, and that defendant has received full payment on said orders and contracts, and that plaintiff is entitled to a reasonable commission upon the same in accordance with his aforesaid agreement.
"Plaintiff further states that ninety thousand dollars ($90,000) is a fair and reasonable commission for obtaining the contracts and orders for the defendant from the United States Government secured by plaintiff during the years 1917 and 1918, and was at the rate then prevailing for like or similar services.
"Plaintiff further states that he has made demand upon defendant and that said demand has been refused.
"Wherefore, plaintiff prays judgment against defendant in the sum of ninety thousand ($90,000) dollars."
To said second amended petition defendant demurred, (1), because said petition does not state facts sufficient to constitute a cause of action; (2), because said petition is multifarious in that it embodies separate and distinct causes of action in a single count; (3), because the cause of action is barred by the Statute of Limitations, for the reason that each and every order was procured more than five years prior to the institution of the suit; (4), because the alleged contract was verbal and its enforcement would violate the Statute of Frauds. As appears from a memorandum made by the trial judge who ruled the demurrer on June 17, 1926, such demurrer was sustained on the first ground, "for the reason that plaintiff's right of action is barred by the Statute of Limitations." This was also the reason urged by defendant specifically in the third ground of the demurrer.
It appears that, on October 18, 1926, at the October, 1926, term of the Circuit Court of the City of St. Louis, this cause was dismissed at plaintiff's cost for failure to prosecute. On December 2, 1926, upon the oral application of plaintiff, the said order of dismissal of October 18, 1926, was set aside and vacated and the cause was reinstated upon the docket. On the same day, the record shows that plaintiff stood on his petition, refused to plead over and suffered judgment of dismissal. On the same day appeal was granted to this court.
Respondent contends that the circuit court had no jurisdiction, at the December term, 1926, and upon the oral motion of plaintiff, to set aside the order of dismissal made October 18, 1926. The printed abstract, as corrected in ink by plaintiff, recites that the dismissal was set aside "on December 2, 1926, during the October, 1926, term of court." Defendant's additional abstract shows nothing to the contrary and the abstract, as thus corrected by plaintiff, must be accepted as truly stating the term at which said order was made. Besides, an examination of the 1926 calendar and Section 2617, Revised Statutes 1919, discloses that December 2, 1926, was not during the December, 1926, term of the Circuit Court of the City of St. Louis.
The court had the undoubted right upon its own motion to set aside the order of dismissal during the term at which such order was entered. The court doubtless treated the oral motion of plaintiff as a mere suggestion. This was entirely permissible. [Marsala v. Marsala, 288 Mo. 501, l.c. 504, 232 S.W. 1048.] The statute giving four days for the filing of formal motions for a new trial is not controlling under such circumstances. Upon the state of the record as we find it, the court was authorized to grant an appeal to the plaintiff on December 2, 1926.
As originally filed, the second amended petition did not contain the words "said commission to be payable upon acceptance and performance of said contracts and orders by defendant," which words we have italicized in quoting said petition. Those words were interlined by leave of the court on June 1, 1926. Assuming that the second amended petition as filed sufficiently alleged a mutual, open and current account (and defendant stoutly maintains that it did not) and otherwise stated a cause of action, was it good against defendant's demurrer that said petition showed upon its face that plaintiff's cause of action was barred by the five years statute of limitation? We think it was not.
Before such amendment by interlineation was made, the petition alleged an agreement that "plaintiff should receive from the defendant in addition to his salary a reasonable commission on all contracts and orders which the plaintiff would obtain for defendant from the United States Government." Under this allegation the commissions alleged to be due to plaintiff became due and payable when each contract or order was obtained by plaintiff for defendant from the Government. The said petition also alleged that, in reliance on the aforesaid agreement, plaintiff secured orders and contracts from the United States Government whereby the Government "purchased from the defendant various and sundry articles and materials on or about the following dates, and at the following prices, to-wit:" Then are set out about seventy items. The date of the purchase from the defendant of the last item is alleged to have been July 13, 1918. The original petition was filed September 22, 1923.
It is therefore apparent that the second amended petition, before it was amended by interlineation on June 1, 1926, did not state a cause of action good against defendant's plea of the Statute of Limitations. The allegation that "said contracts so secured were executed and performed by the defendant corporation during the years 1917, 1918 and 1919," appearing in the second amended petition both before and after the amendment of June 1, 1926, did not aid the petition to avoid the bar of the statute of limitations, because said petition then alleged that commissions were due upon the obtaining of the order by plaintiff by the United States Government. Earning of the commissions was not then alleged to depend upon the performance of the contracts by defendant.
Now, assuming that the second amended petition as filed stated a cause of action in other respects, did the amendment of June 1, 1926, in connection with the allegation that defendant performed the contracts in 1917, 1918 and 1919, relate back to the filing of the original petition on September 22, 1923, and save the plaintiff's cause of action from the bar of the statute of limitations? We think it could not have that effect.
The general rule is that an amendment will not have such effect if the proof necessary to support the pleading as amended is different from the proof necessary to support the same pleading before such amendment; for such an amendment would constitute a departure. [Ross v. Mineral Land Co., 162 Mo. 317, 62 S.W. 984; Heman v. Glann, 129 Mo. 325, 31 S.W. 589; Lumpkin v. Collier, 69 Mo. 170; Scovill v. Glasner, 79 Mo. 449; Wasson v. Boland, 136 Mo. App. 622, l.c. 629, 118 S.W. 663; Douglass Candy Co. v. Shenk, 195 Mo. App. 592, l.c. 597, 194 S.W. 754; 37 C.J. 1068, sec. 507.]
Under the second amended petition as filed, plaintiff only had to prove, among other things, that he obtained the orders and contracts to make his commissions due and payable. After the amendment of June 1, 1926, which was nearly eight years after the last item of the alleged account, it was necessary to prove, not only that he obtained the orders and contracts for defendant, but also that defendant performed such orders and contracts. It took more and different proof to make a case under the petition as amended June 1, 1926, than it did before such amendment. The amendment constituted a departure and did not relate back to the date of the filing of the original petition.
As against defendant's plea of the bar of the action by the statute of limitations, the second amended petition stated no cause of action whatever against defendant prior to June 1, 1926. Assuming that the amendment of June 1, 1926, might properly have been made after the original petition was filed and at any time within five years after the last date of performance of the orders and contracts, alleged in the petition as 1919, yet the same amendment, made in June, 1926, and more than five years after the last alleged date of performance, could not relate back to the filing of the original petition and save the action from the bar of the statute of limitations. [37 C.J. 1078, sec. 516.]
In the view we take of the statute of limitations in this case, it becomes unnecessary to notice other grounds urged by defendant for the affirmance of the judgment or the dismissal of the appeal.
The judgment is affirmed. All concur.