McGill v. Wallace

Hall, J. The first question in this case arises from the action of the circuit court in refusing the eighth declaration of law asked by the plaintiffs. The question thus presented is, were the defendant owners precluded by the judgment of the circuit court in the case of MeConey against these defendants from recovering in this case by way of counter-claim on account of the matters and things set up by way of counter-claim in that case? The reply filed by plaintiffs pleaded the judgment, in [682] the case of McConey, as an estoppel, on the principle of res adjudieata. The declaration of law asked by the’ plaintiffs treated the said judgment in the same manner. We are clearly of the opinion that' the defendant' owners were not estopped by the judgment in the case of McConey from setting up in this case by way of counter-claim the matters and things set up by them by way of counter-claim in the former case. The plaintiffs-were strangers to the case of McConey. The judgment in that case, as to plaintiffs, was res inter alios acta. Henry v. Woods, 77 Mo. 277. The judgment in the case of McConey was in favor of the defendants therein, who are also the defendants herein. The claim of McConey was for $1,355.55, for brick, etc., furnished for the defendants’ building. The plaintiffs now contend that the judgment in that case had the effect of satisfying the claim made by the defendants on account of the'breaches of the bond to the amount of $1,355.55, for the reason that the said judgment satisfied itself to that extent, inasmuch as it extinguished McConey’s claim, which was for that sum. The plaintiffs in their reply and in their declaration of law did not treat the said judgment in accordance with the theory of their present contention, and they will not be permitted to do so now in this court. The plaintiffs did not, in pleading the judgment, state whether it was in favor of, or against, McConey. The said judgment was pleaded as a plain estoppel, and not as a satisfaction of any particular amount of the defendants’ counter-claim. And the judgment was treated in the same manner in the declaration of law asked by plaintiffs. The plaintiffs are bound by the theory in accordance with which they presented the judgment to the circuit court. II. The bond was signed in the firm name. The plaintiffs contend that there was no evidence showing which [683] partner executed the bond, or that the member so executing the bond had authority to do so for the firm; and that, therefore, the court erred in refusing to give the-ninth declaration of law asked by them. Conceding the contention by plaintiffs, as to the evidence, to be well made, are they in a position to deny their execution of the bond? They did not deny the-execution of the bond under oath. By section 3653, Revised Statutes, as amended in 1883 (Laws of 1888, p. 121), it is provided: “When any petition or other pleading shall be founded upon any instrument in writing, charged to have been executed by the other party, and not therein alleged to have been lost or destroyed, the execution of such instrument shall be adjudged confessed, unless the-party charged to have executed the same deny the execution thereof, by answer or replication, verified by affidavit. And where plaintiff or defendant sues or is sued as a corporation and where plaintiff or defendant sue or are sued as a partnership and the names of the several partners are set forth in the petition or answer, it shall not be necessary to prove the fact of such incorporation cv partnership unless the opposite party put such fact in issue by affidavit filed with the pleadings in the cause.” In recently construing the said statute, as amended, we have held that the effect of the failure of the party charged with the execution of an instrument in writing to deny said execution under oath in the cases provided by the statute is that the execution of the instrument stands confessed. Smith Mid. P. Co. v. Pembaugh, 21 Mo. App. 390. Under the former statute on this same subject it was held that “the only effect of not pleading non est factvm under oath, in any case, is that in such case the-plaintiff can read the instrument in evidence without-proof of its execution.” Carpenter v. Inhabitants of Lathrop, 51 Mo. 498. But our present statute is materially different from [684] tie former statute. Tlie execution of the bond by the plaintiffs stood confessed and the court properly refused to give the ninth declaration of law asked by them. The judgment is affirmed. All concur.