Summary
In Peters v. McDonough, 327 Mo. 487, 37 S.W.2d 530, our Supreme Court held that a petition stating a joint cause of action for three plaintiffs could not be sustained by proving the indebtedness to seven.
Summary of this case from Wittels v. DubinskyOpinion
March 31, 1931.
1. ASSUMPSIT: Joint Action: Proof of Several Cause. Where the subject-matter generally pleaded in the action for money had and received is an alleged indebtedness of defendant to the three plaintiffs in a named sum, a joint cause of action is stated, and a joint judgment in favor of all the three plaintiffs is not sustained by proof of a much larger indebtedness from defendant to seven co-heirs, of whom she is one.
2. ASSUMPSIT: Joint Action: Parties: Non-Joinder. Where several parties are jointly interested in an indebtedness, all must be made parties to an action to recover thereon.
3. ____: ____: ____: ____: Demurrer. The non-joinder of necessary parties to an action of general assumpsit which plaintiffs' evidence tends to prove, not appearing on the face of the petition, defendant is not required to divine plaintiffs' purpose or proof by demurring to the petition, but can take advantage of the non-joinder by demurrer to the evidence, the action being ex contractu and not ex delicto.
4. ____: Joint or Several: Proof. If the cause of action in general assumpsit which plaintiffs' evidence tends to prove is several, and not joint, the joint cause of action pleaded will fail for want of proof.
5. ____: Joint: Non-Joinder. If there is a non-joinder of necessary parties to the joint action pleaded for money had and received, there is a failure of proof whether the cause of action proved was joint or several.
6. APPEAL: Technical Error: Materially Affecting Merits. Where the situation presented by the evidence is not a mere matter of technical error, or a variance between pleading and proof, or a failure of proof in some particular only, but a case where the cause of action alleged fails for want of proof in its entire scope and meaning, the statute (Sec. 1513, R.S. 1919) forbidding a reversal unless error materially affecting the merits appears, does not apply.
7. JOINT ACTION: Trial Theory. It cannot be ruled that, where the petition stated a joint cause of action, the defendant adopted the theory that the action pleaded was several, and having tried the case on that theory is bound by it here, where there is nothing in the record to support such contention.
Appeal from Circuit Court of City of St. Louis. — Hon. John W. Calhoun, Judge.
REVERSED.
Igoe, Carroll, Higgs Keefe for appellant.
(1) The evidence does not prove the case pleaded. (a) The allegation of the petition that "defendant did have and receive from one Mary A. Peters for and on account of plaintiffs the sum of $7,714.28," would not be supported by proof that defendant received $12,147 to which Mary A. Peters had no title or right, but which belonged to plaintiffs' father. Such a discrepancy between pleading and proof is fatal to the case. Collins v. Hutchings (Mo. App.), 194 S.W. 733; Nave v. Dieckman (Mo. App.), 208 S.W. 273. (b) That the petition comprehends no such claim as disclosed by this evidence was urged upon the court below in numerous objections to the admission of evidence, and particularly by defendant's objection made early in the trial to the admission of testimony concerning the bonds, which objection the court erroneously overruled. (2) Even if the money and bonds involved were in fact owned by Louis F. Peters at the time of his death, plaintiffs, as heirs, could not recover in this suit, because: (a) They could not maintain an action at law to recover a three-sevenths part of assets of his estate which have never been administered or distributed. Pullis v. Pullis, 178 Mo. 683; Toler v. Judd, 262 Mo. 344. (b) The equitable title of heirs, while sufficient to justify a voluntary distribution among them of personal property of which they are in possession and against which there are no debts, is no basis for an action at law to recover undistributed assets. Richardson v. Cole, 160 Mo. 372; McCracken v. McCaslen, 50 Mo. App. 85; Bell v. Farmers Traders Bank, 188 Mo. App. 383, 174 S.W. 196. (c) And an action for that purpose, to which less than all the heirs were parties and with no showing in the pleadings that the estate was free of debts, would be an anomaly, whether at law or in equity. Weber v. Strobel (Mo. Sup.), 225 S.W. 925. (3) If plaintiffs had a right to recover money as heirs it would avail them nothing under the petition in this suit, because: (a) The cause of action pleaded is joint, one based upon an obligation to plaintiffs jointly. But the evidence, even if accepted as they would have it, does not show any joint right to a three-sevenths part, or any part, of the money involved. Clark v. Zane, 165 Mo. App. 505; Slaughter v. Davenport, 151 Mo. 26. (b) Any joint right to recover assets of the estate of Louis F. Peters would be vested in all the heirs, and an action thereon could not be maintained except by all. Weber v. Strobel (Mo. Sup.), 225 S.W. 925; Frumberg v. Haderlin, 167 Mo. App. 717. (c) Since the evidence does not show an obligation to plaintiffs jointly, while the petition declares upon such an obligation, there is a failure of proof of the case pleaded — not a mere misjoinder — and the defendant's demurrer to the evidence should have been sustained. Yore v. Yore, 240 Mo. 451; Clark v. Zane, 165 Mo. App. 505; Wintergerst v. Court of Honor, 185 Mo. App. 373; Welsh v. Fraternal Aid Union, 214 Mo. App. 443, 253 S.W. 187; Park v. Park (Mo. Sup.), 259 S.W. 417; Slaughter v. Davenport, 151 Mo. 26. (4) As a matter of fact (and of law) the evidence is insufficient to support a finding that the money and bonds received by defendant from her mother were owned by Louis F. Peters. (a) There is no competent direct evidence of such ownership, nor do the facts and circumstances shown justify an inference to that effect. Forester v. Moore, 77 Mo. 651; Burdette v. May, 100 Mo. 13. (b) To the contrary, the presumption is that Mary A. Peters was the owner of the money and negotiable bonds of which she had exclusive possession. Hartwell v. Parks, 240 Mo. 537; Lipscomb v. Talbot, 243 Mo. 1; Fitzgerald v. Parker, 85 Mo. 81. (c) And the facts that this assault on defendant's title to the money was made more than fifteen years after receipt of it and that the parties who could have supplied primary evidence of the facts are dead fortify the presumption in defendant's favor. These factors are considered by this court, although this is a law and not an equity case, because the question involved is as to the propriety of drawing inferences to supply necessary facts. Burdette v. May, 100 Mo. 13; Rosenwald v. Middlebrook, 188 Mo. 94; Kirk v. Middlebrook, 201 Mo. 289. (d) The fact that defendant compromised a claim asserted by her mother to a part of the $10,000 theretofore given defendant, shows no admission of fact and has no probative value. 2 Wigmore on Evidence, sec. 1061, pp. 522, 524; Smith v. Shell, 82 Mo. 220.
Albert E. Hausman for respondents.
(1) The reasons urged for a reversal are purely technical, and Sec. 1513, R.S. 1919, applies. Schultz v. Schultz, 316 Mo. 739. (2) The cause was tried in the lower court upon the theory that the cause of action was several, and that plaintiffs were tenants in common; and that the petition set forth several causes of action, and defendant having adopted that theory in the trial court cannot adopt a different theory in this court. In re McMenamy's Guardian, 307 Mo. 98: Ostrander v. Messmer, 315 Mo. 1165; Bank of Moberly v. Neals, 295 S.W. 73. Appellant, by filing her motion to dismiss the cause as to Mathilda O. Holcomb upon the ground that the cause of action in so far as Mathilda O. Holcomb was concerned, was barred by limitation, because Mathilda O. Holcomb had been divorced more than five years prior to the bringing of the suit, distinctly adopted the theory that the causes of action set forth were several, for had a joint cause been pleaded, the bar would have extended to all parties or to none. Keeton v. Keeton, 20 Mo. 530; Walker v. Bacon, 32 Mo. 144; Ridon v. Frion, 7 N.C. 577: Cameron v. Hicks, 141 N.C. 21. (3) The petition complies with Sec. 1220. R.S. 1919, in that it sets out the names of the parties to the action and a plain and concise statement of the facts constituting the cause of action, together with the relief demanded. Appellant never contended that the petition should be made more definite and certain and filed no motion to that effect. In the absence of such motion, the petition was amply sufficient, and the judgment should not be disturbed. Donahue v. Bragg, 49 Mo. App. 273; Warfield v. Hume, 91 Mo. App. 541. (4) Appellant cannot now urge the point that plaintiff pleaded one cause of action and proved another, for the reason that no such objection was urged against any evidence admitted. Ford v. Wabash, 318 Mo. 723; Davenport v. Casey, 222 S.W. 791. (5) This court will not allow a defendant to he in ambush until he appears in this court before disclosing his real position in the case. The appellant pleaded, and tried this case, upon the theory that the petition set forth a several cause in favor of each of the three plaintiffs who were several distributees of the estate of Louis F. Peters.
This case comes to the writer on reassignment after second hearing. It is an appeal by defendant from a judgment against her for $9,784.24 in an action for money had and received. The case was tried on the second count of plaintiffs' amended petition, which is as follows:
"For their second cause of action plaintiffs state that Christine E. Peters is now and at all times herein mentioned was the wife of Christian Peters: that Laura MacIvor is now and at all times herein mentioned was the wife of Walter I. MacIvor; that Josephine J. Webb is now and at all times herein mentioned was the wife of Walter Webb; that Mathilda O. Holcomb was until the 8th day of February, 1915, the wife of John R. Holcomb.
"That from January, 1908, and thereafter, to December 24, 1911, the defendant did have and receive from one Mary A. Peters for and on account of plaintiffs the sum of $7,714.28, which sum she has held since for the use and benefit of plaintiffs.
"That on the 22nd day of July, 1924, the plaintiffs did demand payment of said sum, but defendant has failed and refused to pay said sum or any part thereof and still fails and refuses to pay said sum; wherefore plaintiffs pray judgment against defendant for the sum of $7,714.28 with interest thereon at the rate of 6 per cent per annum since 1911 together with their costs."
Before the issues were finally made defendant filed motion to dismiss the cause as to plaintiff Mathilda O. Holcomb, which motion was sustained. Defendant went to trial upon her amended answer which consisted of a general denial, coupled with pleas of the five-year and ten-year Statutes of Limitation barring maintenance of the action. The reply was a general denial.
The evidence showed that Louis F. Peters died June 22, 1909, leaving his widow, Mary A. Peters, and his daughters, Christine E. Peters, Josephine J. Webb, Laura MacIvor, Mathilda O. Holcomb, Goldie Schott and Nellie F. Peters, as his sole surviving heirs at law, all of whom as far as this record shows are still living, but only five of whom were ever made parties to this action. His estate was administered in the Probate Court of the City of St. Louis, and the administrator was discharged on December 22, 1911, without leaving any unpaid allowed demands against the estate. For a year or more prior to his death Louis F. Peters was physically and mentally incapacitated and was cared for by his wife Mary A. Peters and their daughter Nellie F. Peters (now Nellie F. McDonough, defendant-appellant herein), who lived with him in the family home, the other five daughters having married and moved away. On January 24, 1908, Mary A. Peters deposited in her own name with the Mississippi Valley Trust Company negotiable bonds and other securities to the amount of $164,700. On the same day she deposited in the Trust Company, in the name of her daughter, Nellie F. Peters, negotiable bonds in the amount of $700. Mary A. Peters subsequently deposited other negotiable securities in her own name with said company. On January 27, 1909, she also gave the said Nellie F. Peters additional bonds to amount of $20,000, which were transferred by said Trust Company from the account of Mary A. Peters to the account of Nellie F. Peters. In October, 1911, these bonds were turned in by the said Nellie F. Peters in a distribution of property pursuant to a written agreement of settlement between Mary A. Peters and her six daughters, but in the meantime Nellie F. Peters had realized from interest coupons on these bonds the sum of $2,147, which amount was not distributed in said settlement and is still retained by appellant. On July 20, 1909, about a month after the death of Louis F. Peters, his widow, Mary A. Peters, deposited the sum of $10,000 in the Mercantile Trust Company in St. Louis to the joint account of herself and daughter, Nellie F. Peters, at the same time executing and delivering to her said daughter a written statement to the effect that she had given her the sum of $10,000 absolutely and without limitation or reservation and out of love and affection for her. Subsequently, on March 28, 1910, the $10,000 thus deposited was withdrawn by the said Nellie F. Peters, but not distributed in the aforesaid settlement and is still retained by her. Indeed, it does not appear that any of the heirs, except defendant and her mother, were aware of the fact that defendant was in possession of these sums of $10,000 and $2,147 at the time this settlement was made.
The case was tried without a jury, and the contention of plaintiffs, as manifested by the evidence at the trial, was that neither the bonds given to Nellie F. Peters by her mother in January, 1909, and prior thereto, nor the $10,000 given to her in July, 1909, ever belonged to the mother. Mary A. Peters, but in fact belonged to the father, Louis F. Peters, and that plaintiffs (being three of the seven heirs of the said Louis F. Peters) were entitled to recover in this suit three-sevenths of $12,147 (the total amount said to have been so received and retained by defendant) with interest. The judgment awarded this three-sevenths to plaintiffs jointly.
Among the errors complained of in defendant's motion for a new trial and urged in this appeal is the trial court's action in overruling defendant's demurrer to the evidence interposed at the close of plaintiffs' case and again at the close Joint Action: of the whole case. It is appellant's contention Several Proof: under this head that plaintiffs' petition stated Non-Joinder. a joint cause of action and, that the proof, if sufficient to establish any cause of action, showed a several or distinct and different cause of action, and that there was a complete failure of proof as to the cause of action pleaded.
Plaintiffs' declaration is in general assumpsit. Hence, whether by fiction of law or in fact, it rests upon contract. No objection having been made that it was not special in form it could be supported by proof of either an express or an implied contract. [2 R.C.L. 762, note 11 and cases cited.] A contract may be joint in form and several in fact, or vice-versa. The subject-matter generally pleaded in this case was an alleged indebtedness of defendant to plaintiffs of $7,714.28, for which amount they jointly prayed judgment. Plaintiffs' petition thus stated a joint cause of action and that kind of a judgment was rendered. But, plaintiffs' evidence tended to prove an indebtedness of $12,147 from defendant to the seven heirs of Louis F. Peters, deceased, of which she was one. If the interest of these seven heirs in this sum was joint then the cause of action which plaintiffs' evidence tended to prove was different from the cause of action pleaded, because it was one in which seven parties were jointly interested in $12,147, while the cause of action originally pleaded was one in which four parties were alleged to have been jointly interested in $7,714,28 and as finally submitted it was in fact one in which three parties were alleged to have been jointly interested in a correspondingly smaller sum. Moreover, where several parties are jointly interested in an indebtedness all must be parties in an action to recover thereon. [Welles v. Gaty et al., 9 Mo. 566, 570; Lane v. Dobyns, 11 Mo. 106; Clark v. Cable, 21 Mo. 223, 225; Dewey v. Carey, 60 Mo. 224; McConnell v. Brayner, 63 Mo. 461, 463; Ryan v. Riddle, 78 Mo. 521, 522; Seay v. Sanders, 88 Mo. App. 478, 487; Lumerate v. Railroad, 149 Mo. App. 47, 52; Ann. Cas. 1913D, p. 238.] And, the non-joinder of necessary parties to the cause of action which plaintiffs' evidence tended to prove not appearing on the face of the petition, defendant was not required to divine plaintiffs' purpose or proof by demurrer to the petition or answer, but could take advantage of the non-joinder by demurrer to the evidence, the action being ex contractu and not ex delicto. [Yore v. Yore, 240 Mo. 451, 462, 144 S.W. 847; Slaughter v. Davenport, 151 Mo. 26, 32, 51 S.W. 471; McLaran v. Wilhelm, 50 Mo. App. 658, 661; Butler v. Boynton, 117 Mo. App. 462, 465, 94 S.W. 723, 724; Frumberg v. Haderlein, 167 Mo. App. 717, 721, 151 S.W. 160; 20 R.C.L. 701, 702, secs. 40, 41; Andrew's Stephen's Pleading (2 Ed.) sec. 33.] If, on the other hand, the cause of action which plaintiffs' evidence tended to prove, was several and not joint then the cause of action pleaded would fail for want of proof. [Park v. Park (Mo. Sup.), 259 S.W. 417, 420; Slaughter v. Davenport, 151 Mo. 26, 32, 51 S.W. 471; Nave v. Dieckman (Mo. App.), 208 S.W. 273, 274; Clark v. Zane, 165 Mo. App. 505, 508, 510, 148 S.W. 967.] So, whether the cause of action proved was joint or several there was an absolute failure of proof as far as the cause of action pleaded is concerned.
Confronted with the above situation respondents say that the reasons urged for reversal are purely technical not affecting the merits of the action, and that Section 1513, Revised Statutes 1919, forbids reversal on appeal unless the Error Affecting appellate court shall believe that error was Merits. committed by the trial court against the appellant or plaintiff in error, and materially affecting the merits of the action. However, the situation presented by the evidence is not a mere matter of error, or a variance between pleading and proof contemplated by Section 1272, Revised Statutes 1919, or a failure of proof "in some particular or particulars only." It is a case where the cause of action alleged fails for want of proof "in its entire scope and meaning," such as is contemplated by Section 1452, Revised Statutes 1919, but the remedy therein provided has no application to the record here presented.
Respondents next say that the case was tried upon the theory that the cause of action pleaded was several, and that defendant having adopted that theory in the trial court cannot adopt a different theory here. Illustrative of this contention respondents say that by filing her motion to Trial Theory. dismiss the cause as to Mathilda O. Holcomb, upon the ground that the cause of action in so far as she was concerned was barred by limitation because she had been divorced more than five years prior to the bringing the suit, defendant distinctly adopted the theory that plaintiffs pleaded a several cause of action, for (they say) had a joint cause of action been pleaded the bar would have extended to all parties or to none. If defendant had this theory in mind she would doubtless have asked full relief in the motion, but she did not. We find nothing in the record to indicate that defendant tried the cause on a different theory from that presented on this appeal.
Respondents further say that the judgment should not be disturbed because defendant did not file a motion to make plaintiffs' petition more definite and certain, or object on the specific ground that they had pleaded one cause of action and proved another, and that she could not have been Motion to misled. For reasons already stated these excuses Make Definite. can be of no avail. Nor is this a case where defendant has lain in ambush until her appearance in this court "before disclosing her real position in the case." She interposed timely demurrers to the evidence and plaintiffs must be deemed to have known whether or not the evidence made a case under the pleadings.
Counsel for appellant urge other points which we deem it unnecessary to rule on this appeal. For the reasons above stated the judgment is reversed. All concur.