Pickering v. Mississippi Valley National Telegraph Co.

Currier, Judge,

delivered the opinion of the court.

The parties contracted together in writing as follows : The defendants agreed to furnish the poles and other material for a telegraph line from Keokuk, Iowa, to St. Louis, a distance of 214 miles. The poles were to be supplied at different points along the Mississippi river bank in the time and manner pointed out in the contract. The plaintiff agreed to distribute the poles from the points where they were to be left and to construct the telegraph line at $40 a mile. Three of the counts in the petition are based upon alleged breaches of the contract on the part of the defendants. The breaches complained of are, in substance, (1) that the defendants neglected and refused to furnish tbe material for the last fifty-nine miles of the line, thereby breaking off the job and preventing its completion by the plaintiff; (2) that the defendants neglected to furnish the* material for the 155 miles actually constructed by the plaintiff, in the time agreed on, whereby, it is claimed, the plaintiff was greatly damaged;, and (3) that the defendants had failed to pay the stipulated price for the erection of the 155 miles as they had agreed to do.

The petition was demurred to, but the demurrer was overruled, and the defendants thereupon answered upon the merits, and put in issue the various averments of the petition showing a breach of the contract on the part of the defendants. The plaintiff *460 recovered, and the defendants thereupon moved in arrest, filed their bill of exceptions, and bring the case here by writ of error.

The merits of the demurrer have been argued at length, but they can not be considered in the present attitude of the case. By answering upon the merits, the defendants practically withdrew and abandoned the demurrer, although it may not have been withdrawn in form. A demurrer admitting the facts and an answer denying them are totally inconsistent with each other and can not stand together. As the demurrer admitted the facts, when it was overruled the plaintiff was technically entitled to judgment. The strictly accurate practice in such case is for the overruled party to withdraw his demurrer and plead to the merits, by leave of the court, where he desires to put the facts in issue. These views, I apprehend, are in accordance with the general understanding of the profession and the previous rulings of this court. The point was distinctly passed upon in Reyburn v. Bellotti, 6 Mo. 601 ; see also Fuggle v. Hobbs, 42 Mo. 538 .

In the case at bar, .if the defendants relied upon supposed technical defects in their antagonist’s pleading as a ground of defense they should have stood upon the- demurrer and abandoned the case at that point, and thus • avoided the wholly fruitless expense of a trial of the issues of fact. Having taken his chances upon those issues, it is now too late to go back and revive their demurrer, and inquire into the technical deficiencies of their adversary’s pleading. IE the pleadings were radically deficient — that is, if the petition failed to disclose facts sufficient to constitute a cause or causes of action, or there were a defect of jurisdiction — an ample remedy is furnished by their motion in arrest, and that I will now proceed to consider.

The motion in arrest, it may be remarked in the outset, does not bring up any question in relation to the mingling in the same count of different causes of aet-ion. That point was maturely considered and definitely settled in House v. Lowell, 45 Mo. 381 . A motion in arrest is designed to test the sufficiency of the petition, or the sufficiency of the several counts therein. In the case at bar the third and fourth counts are objected to as not containing in either instance a statement of facts sufficient to constitute *461 a cause of action. They are supposed to be deficient as not showing the performance or an excuse for the non-performance of a supposed condition precedent.

The contract sued upon, as we have seen, provided that the defendant should furnish the telegraph poles and other materials entering into the construction of the line, at different points along the Mississippi river, in the time and manner therein specified. The contract also provided that the plaintiff should take the poles from the river bank and distribute them along the telegraph line at his own expense; that he should attach the insulators, string the wire and set the poles in the ground in a particular way. The third count is based upon an alleged failure of the. defendants to furnish the poles and other material in the time and manner agreed upon. The complaint is not that the material for the first 155 miles of the line was not furnished at all, but that it was not furnished in time. The obligation of the defendants to furnish the material within the time specified was absolute and did not depend upon the action of the plaintiff. Yet the count in question is objected to as not showing the performance of some imaginary condition precedent. As regards this branch of the contract, there was no condition precedent to be performed by the plaintiff. The defendants reverse the order of things. The first step was to be taken by them, namely, to furnish the material upon the river bank. Until this was done the plaintiff was not required to move. The condition precedent was upon the defendants. The plaintiff was not even required to receive- the poles at the designated points. They wrere to be left at these points by the defendants, and that being done the plaintiff was afterward to make the proper distribution of them along the telegraph line. In a word, according .to .the third count, the defendants agreed to furnish the poles within a given time, and failed to do it, whereby the plaintiff was injured. That is the substance of the case so .far as this count is concerned. There was no condition• precedent,. the performance of which it was necessary for him to aver, or the non-performance of which .it was necessary for him to excuse in framing his petition.

The fourth count in substance avers the readiness of the *462 plaintiff to complete the whole 214 miles of telegraph line according to the stipulations of the contract, saving delays occasioned by the defendants’ negligence, and then alleges that the job was broken up by the wrongful acts of the defendants, and their refusal to furnish the material for the last fifty-five weeks, and thus the plaintiff was prevented from completing the work and subjected to the loss of his just profits. The count is well enough. (Chamberlin v. Sawyer, 33 Verm. 80 ; Clark v. Mayor, etc., of New York, 4 Comst. 338.)

As we have 'already seen, the plaintiff sued to recover damages flowing from different alleged breaches of one and the same contract. The pleader, in framing the petition, treated each breach as a separate and independent cause of action. Whatever objection there may be to the technical accuracy of this mode of pleading, the objection is not available upon a motion in arrest. The objection does not go to the foundation of the plaintiff’s right of action, nor can the defendants have been misled or injured by the form of the petition.

I recommend an affirmance of the judgment.

Judge Bliss concurs; Judge Wagner absent.