Baker v. Raley

Opinion by Ellison, J. As to the first point, it is true in some respects, the plaintiff does not make out his case as stated, that is, he alleges the suit was assigned by the plaintiff therein to Raley, while the proof is, it was assigned to one Griggs, and by Griggs assigned to Hughes and Raley, the latter being the defendant here. We do not regard this as a failure of proof of the allegation of the cause of action “in its entire scope and meaning.” It is not more than a variance. Appellant’s authorities [566] are not deemed applicable to this case. The case of Faulkner v. Faulkner (73 Mo. 327), was where the note, which was the cause of action, was declared to be “made, executed, and delivered to C. C. Bland as one of the executors of the estate of R. P. Faulkner; that offered in evidence in support of such allegation was according to its terms, made and executed to J. I). Faulkner and C. C. Bland executors.” Here was an allegation of one note and proof of another. An allegation of one cause of action and proof of another. There may have been in existence the two notes, the one declared on and the one proved; and, certainly, the allegation as to one would not be supported by the introduction of the other. But in the case before us, there is but one cause of action, and that, the liability of defendant to pay the costs by reason of becoming the owner of the claim which was in suit, and prosecuting it at his own expense for himself. This claim and defendant’s-liability was correctly described and there was no variance between it as declared on and as proved. The only difference was as to the mode of the transfer of the claim in suit from the original holder and plaintiff, to this defendant. The “cause of action” here,- is the liability of defendant for the payment of those costs founded on the claim of Fetters v. McElroy, and it is proved as charged ; but there is a discrepancy between the allegagation and proof as to the mode whereby defendant obtained the title to the claim then in suit. Suppose in the case of Faulkner v. Faulkner, supra, the proof as to the payees of the note had corresponded with the allegation, but the note had changed hands by successive-endorsements and the charge in the petition had contained one more, or one less assignment than the proof showed; would it have been said that this was a failure of proof “of the cause of action in its entire scope and meaning?” We apprehend not. The fact of the assignment here being to Hughes and Raley can make ho difference, as either is liable to the action, and plaintiff [567] can not be held to know how defendant obtained his title to the right of action purchased of Fetters. The other cases cited by defendant are equally inapplicable. This being a case of variance only,(defendant should have stated his surprise by affidavit, and having failed to do so, he can not now complain. Clements v. Maloney, 55 Mo. 353. As to the second point, viz. : that there are several causes of action stated in one count, it does not appear that defendant made any objection byway of demurrer to this defect, and not having done so, he has waived it. ’ The cases of Hoagland v. Ry. Co. (39 Mo. 451), and other cases cited by defendant to the effect that the point may be made by motion in arrest, have long since been overruled. House v. Lowell et al., 45 Mo. 381; Pickering v. The Mississippi Valley National Telegraph Co., 47 Mo. 457; The Union Bank of Trenton v. Dillon, 75 Mo. 380. We assume that the defendant had overlooked this, as, if known, candor and fair dealing with the court, would have required a statement of the facts. The third objection is not well taken. There is a statement of the account due each party, and if it be conceded there should have been a more particular statement of the items, defendant should have “moved that the petition be made more definite and certain.” Meyer v. Chambers, 68, Mo. 626. As to the fourth point we believe the petition does state a cause of action. Though defendant was not substituted as party plaintiff in that action, yet he was the owner of it, controlled it and made the costs in it, after his purchase, and it is shown that he is only held liable by the circuit court for the costs made after his ownership and assumption of control of the action. The proof was that all the costs were made in behalf of the plaintiff in that action, and that defendant had stated at different times that he was prosecuting the suit at his own expense and for himself. There is no contradiction of this portion of the deposition of the witness Fetters. Notwithstanding he was not substituted as a party, we know [568] of no good reason wliy he, the real party, may not, when discovered, be held liable for those debts which he created. The judgment is affirmed. Hall, J. concurs ; Philips, P. J.,. dissents.