Swift v. Central Union Fire Insurance

*421 ELLISON, P. J. Plaintiffs case is based on an oral contract of fire insurance made by Mm with defendant’s agent. He obtained judgment in the circuit court. The chief objection to the judgment is that the petition does not state facts sufficient to constitute a cause of action. The particular point is that there is no allegation that there was a consideration for the promise of insurance. The point is well made. [Mc-Nulty v. Collins, 7 Mo. 69; Hart v. Harrison Wire Co., 91 Mo. 414; County v. Auchley, 92 Mo. 126; Bliss on Code Pleading, secs. 268, 269, 308; 1 Chitty on Pleading (16 Ed.), 300, 301 (star page), 382, 383, (bottom page).] Without a consideration a promise to pay money, or to insure against loss of property, will not afford a basis for a cause of action — an action cannot be successfully maintained on a promise of that kind. Therefore, a petition which fails to allege a consideration fails to state a cause of action. If the action had been on a promise in writing for the payment of money the promise would have imported a consideration and been within the provision of section 2774, Revised Statutes 1909. [Rector v. Fornier, 1 Mo. 204; Johnson v. Woodmen of the World, 119 Mo. App. 98,] Plaintiff suggests' that the petition is good notwithstanding the foregoing defect in that it alleges that the oral contract wTas that the contract- of insurance was upon the same general terms, so far as applicable, as those embraced in a certain writing which it had with defendant which the pleader recites at length in the petition, from which it'appears there was a consideration expressed for that contract. But such recitation of some other contract is not' an allegation of a consideration for the contract involved. The question here is as to the consideration for this agreement to adopt the provisions of that other contract. The next matter in avoidance of defendant’s point is that after judgment, but before the motions for new trial and arrest were overruled, the trial court *422 permitted an amendment of the petition by alleging a consideration. The statute (secs. 1851, 2119, 2120, R. S. 1909) permits an amendment of formal defects in the pleading, bnt not one that goes to the very cause of action itself. [Hart v. Harrison Wire Co., 91 Mo. 414, 420; Andrew v. Lynch, 27 Mo. 169.] In considering these decisions, and those hereafter referred to, the distinction and difference must he noted between allowing an amendment upon which to render a. judgment in a .trial already had; and allowing an amendment for the purpose of a new trial. We think it has been the understanding of the bench and ■ bar of the State that formal defects in a petition may be cured by amendment after verdict, and even in instances relating to a statement of a cause-of action itself, if the cause of action be stated defectively or imperfectly, ■ the petition may be amended' after verdict; and judgment then rendered on the verdict But this can never be done if no cause of action is stated. [Weil v. Greene County, 69 Mo. 281, 286; Grove v. City of Kansas, 75 Mo. 672; Welch v. Bryan, 28 Mo. 30.] It ought never to be said that you may for the first time state a cause of action for a trial after that trial has been had and take judgment on the new statement. The pleading of a cause of action must necessarily precede a trial, else difficulties would arise hard to measure. If a- proper time to settle what amendment is necessary in order that a cause of action be stated, is after the trial, there has been, heretofore, much waste of time by the courts in determining that question before the trial. It would seem that if that procedure is allowable, it would simplify matters to try same case or other, without a petition and then file a petition bottomed on the case tried. Our relief statutes are curative — that is their popular name— they are not creative. They cure a cause of action which, before trial, has been awkwardly, imperfectly or defectively stated; but they do not permit one to be manufactured1, out of the new material, after trial, *423 so as to render judgment thereon. [See in illustration, St. Louis v. Wright Cont. Co., 210 Mo. 491, 500, 501.] The following cases relied upon by plaintiff are far from sustaining' him, viz, Tebeau v. Ridge, 261 Mo. 547; Sawyer v. Railroad, 156 Mo. 468, Elfrank v. Seiler, 54 Mo. 134 and Case v. Fogg, 46 Mo. 44, 47. In neither of these was there a failure to state a cause of action, but in each a cause of action was imperfectly stated. In the first case an allegation of ownership of land was necessary. There was such allegation in effect, but the court stated (p. 558) that it was not “in apt terms.” It is stated in the opinion (pp. 558, 561) that “setting out in the petition in haeo verba the paper containing the option to buy was a sufficient compliance with any requirement to plead ownership.” In this condition of the pleading, with no objections and each party treating the matter as sufficiently pleaded, the court held there was a cause of action stated.' There was no question of amendment in case. In the second case the court decided (p. 476) that the petition stated a cause of action. The court then took up the question whether an “alleged failure to negative payment” rendered the petition bad and held it did not: Then the court added that conceding the petition should have negatived defendant’s failure to exercise a certain option, it was merely a defect cured by the evidence and verdict. In other words, the court did no more than to say that if a cause of action was stated, a defect in the petition was curable by verdict. In the third case it is expressly decided that the petition merely lacked form but did state a cause of action. But in the course of the opinion the court said: “There are only two things under our liberal system which are fatal to a suit, and those are, first, that the petition does not state facts sufficient to constitute a cause of action; and second, that the court has no jurisdiction over the subject-matter of the suit. And *424 the fatality as to the first instance cited, may be obviated so far as concerns a formal sufficiency by amendment; but if tbe pleader refuse to amend, defeat awaits him.” This expression as to an amendment is laid hold of as aiding tbe course taken at tbe present trial. It bas no apphcation. Tbe amendment referred to evidently is one to be made' before, or during tbe trial; if not made then, “defeat awaits him.” In tbe last case the petition alleged tbe damages sustained on account of tbe conversion of some merchandise, but imperfectly alleged its value. Tbe value was denied by tbe answer and tbe court merely held tbe defect was cured by verdict. It has been a long time since Judge Napton announced in Andrews v. Lyncli, supra, that: “The old rule of the English judges that a verdict would supply whatever of necessity must have been proved to the jury bas never been held to extend to cases where tbe gist of tbe action is omitted. Nor have tbe various statutes of amendments and jeofails enacted in several of our States and embodying this principle ever beSa construed to embrace a case where no cause of action is stated.” That statement bas never been questioned since. On tbe contrary is being- cited on all fit occasions. Passing by tbe foregoing, plaintiffs call to their aid section 2026, Revised Statutes 1909. It reads as follows: “When, a judgment shall be arrested, tbe court shall allow the proceedings in which tbe error was to be amended, in all cases when tbe same amendment might have been made before trial, and tbe cause shall again proceed according to tbe practice of the court.” That statute affords no relief to tbe situation in which plaintiffs find themselves. Tbe statute means that when a trial court arrests a judgment, for a reason that is absolutely fatal to tbe case that case is at an end, and, if tbe plaintiff bas any right, a new action must be brought. It is said of a motion in arrest that “If granted, it does not necessarily result in a new trial.” *425 [Stid v. Railroad, 211 Mo. 411, 415.] That is, if the error or defect is such that it could nave been cured by amendment before the trial, then the effect following the sustaining of the motion in arrest and allowing such amendment, is the granting a new trial (State ex rel. v. Fisher, 239 Mo. 325, 336), when the cause may be. heard, this time, on a pleading which states a cause of action. That is to say, in the language of the statute, “the cause shall again proceed according to the practice of the court.” In O’Toole v. Lowenstein, 177 Mo. App. 662, the St. Louis Court of Appeals decided an amendment could be made after verdict, and it rightly remanded the case for new trial. But plaintiff lays hold of remarks of that court in the course of the opinion in stating what this court had decided concerning the right to amend after verdict and the right to take judgment on that verdict (Golden v. Moore, 126 Mo. App. 518; Merrill v. Mason, 159 Mo. App. 605). But the remarks of that court were rather introductory or explanatory of the case before the.court and were not involved in the decision of that case, and were not intended as a decision. And so that court cast it all aside by stating that the conditions existing in the two cases in this court were not in the case it ivas deciding and then proceeded to decide that case in no way contrary to what ive have here held. But we think the case of Golden v. Moore, 126 Mo. App. 518, and Merrill v. Mason, 159 Mo. App. 605, do sustain the trial court and is perhaps what that court based its ruling upon. But under the-views herein stated those cases were erroneously decided. From the .foregoing considerations, 'we think it clear that when a cause of action is stated, but inaptly or imperfectly, it is curable under the terms of the statute, after verdict, so that judgment may be rendered on such verdict. But if no cause of action is stated, it cannot be made to sustain a judgment by amendment after trial. In such instance, judgment should be *426 arrested and, instead of turning plaintiff out of court to begin over again, a new trial should be granted with leave to amend in such way as to state a cause of action. In further effort to escape from defendant’s point, plaintiff shows that counsel in making his statement of defendant’s case said the issue was one of fact. That at the trial his objections were too general to advise plaintiff of his precise point until the motions for new trial and in arrest were argued. This cannot aid plaintiff; for, the defect of failure to state a cause of action may be raised at “any stage of the case.” [Chandler v. Railroad, 251 Mo. 592; Greer v. Railroad, 173 Mo. App. 276.] The judgment will be reversed and the cause remanded for new trial. Trimble, J., concurs. Johnson, J., dissents.