O'Riley v. Diss

Ellison, J.

This case was originally instituted before a justice of the peace on a written statement disclosing two causes of action separately stated; on,e for breach of a contract and the other for trespass to-real property. On appeal to circuit court on defendant’s motion the count for trespass was stricken out,, plaintiff acquiescing. The cause then went to trial on the count for breach of contract and plaintiff recovered a judgment.' Defendant appealed to this court, where' the judgment was reversed for errors committed in' the' trial. When the cause was remanded plaintiff filed an amended petition retaining the count on the contract-as it was originally, and adding the count in trespass. (stated more in detail) which was stricken out before' the first trial. To this defendant objected ; the objection being overruled, he filed a motion to strike it out, which was likewise overruled. The case afterwards came on for trial when plaintiff dismissed the first count, thus, leaving the cause standing on the count for the trespass.

When the court struck out the trespass count before the first trial, the plaintiff acquiescing therein,, the cause then stood as though originally brought on the contract alone. And, when afterwards, before the second trial, plaintiff amended by filing an amended petition (over defendant’s objection) adding a count in trespass, he was joining a suit in trespass to a suit on a contract, a • thing he could not legally do. Ederlin v. Judge, 36 Mo. 350 ; Southworth v. Lamb, 82 Mo. 242 . The fact that plaintiff acquiesced in the action of the trial court before the first trial in striking out his count in trespass was tantamount to an election by him to place his action on the contract. He was considered as having so elected when the case was formerly here. 41 Mo. App. 192 . He tried the case as thus made, and now to permit him to reinstate the- abandoned count on the trespass, then dismiss the cause of action upon which *65 he first stood and re-recovered, and then obtain judgment for the trespass ought not to be allowed. It was held when the cause was formerly before ns that if there was a liability on defendant it was for a violation of his common-law obligation to keep his cattle on his own premises. But it was not held that he could tack such new action onto an action for breach of contract.

There is a c oss-appeal here by plaintiff in which complaint is ipade of the action of the trial court in taxing costs against him made at the term at which he amended his petition. But as the result at which we have arrived throws such costs on the plaintiff we need not consider the merits of his complaint, and will affirm the judgment as to the taxing of costs against plaintiff, and reverse the judgment rendered against defendant.

All concur.