Fadley v. Smith

Ellison, J. Defendant sold plaintiffs a portable saw mill and gave a written guaranty in the bill of sale,. [91] whereby he guaranteed the mill to saw five thousand feet of lumber per day, if properly managed by competent men. The guaranty was to continue for ten days from its date, only, and contained a stipulation that in case the mill failed to perform as agreed, plaintiffs should notify defendant “within ten days from this date (date of guaranty) of said failure.” “Pending the trial of said cause” defendant, wdthout leave, filed a demurrer to the petition and asked to withdraw his answer.' The court refused leave to withdraw and struck the demurrer from the files. The trial was then proceeded with. Plaintiffs offered the written guaranty in evidence ‘‘ to the introduction of which defendant at the moment excepted.” “Defendant also objected to the introduction of any evidence under the petition.’ ’ The objection was overruled, to which action of the court ‘ ‘ defendant at the moment excepted.” Plaintiffs gave evidence tending to support their petition, and defendant tending to support his answer. One instruction asked by plaintiffs was given, and of the six asked by defendant, three were given and three refused. The trial resulted in plaintiffs’ favor and defendant appeals, contending here, that his demurrer should not have been stricken from the files ; that his objections to testimony should have been sustained, and that jjlaintiffs’ instruction • should not have been given, and his should not have been refused. The demurrer being filed during the trial, while the trial was pending, was properly stricken out. Allowing a pleading to be filéd out of time is much in the dis cretion of the trial court, and certainly, we cannot say that discretion was abused to defendant’s injury, by striking from the files a demurrer, which had been waived by the answer, and which had been filed without leave, while the trial was on. The objection to the introduction of the guaranty was properly overruled, no reason being assigned ' therefor. This has been frequently held in this, and in [92] the supreme court. So too, with regard to the objection ' to any evidence under the petition. There is net the remotest suggestion made as to why evidence should noi be received under the petition. The instruction for plaintiff was properly given, and, in connection with those granted the defence, fully covered the issues in the case.' Instruction number four, refused for defendant, asserted the proposition that if plaintiffs retained the property and paid the purchase price they could not recover. I do not understand such to be the law in this sort of case. “Payment ofithe priceis no legal waiver of the warranty.” 2 Suth. Dam. 128. If we should concede, as is claimed by defendant, ¡that there is a misjoinder in plaintiffs’ petition, the point would avail him nothing. Advantage of such improper pleading cannot be taken advantage of by motion in arrest. The doctrine announced in the quotation and citation of defendant has been exploded in this state. Sweet v. Maupin, 65 Mo. 63-72; House v. Lowell, 45 Mo. 381; Pickering v. The M. V. N. T. Co., 47 Mo. 457. The law is that when causes of action, which may be properly joined in one petition, are placed in one count, instead of being separately stated in separate counts, the remedy is by motion to require plaintiff to elect one and to strike out the remaining causes thus improperly joined in one count. Otis v. Mechanics’ Bank, 35 Mo. 128 ; Mooney v. Kennet, 19 Mo. 551; Christal v. Craig, 80 Mo. 367. Where there are causes of action stated in the petition, either in one count or separate counts, which cannot be united in the same petition, but require separate suits, the remedy is by demurrer. And it is such incongruous uniting of actions to which the fifth subdivision of section 3515, Revised Statutes, relating to demurrers refers. Otis v. Mechanics’ Bank, supra. It has undoubtedly been the rule in this state, that where there is a misjoinder and the remedy be either [93] demurrer or motion to elect, it should -be filed and determined before trial. “ The opportunity is offered, by demurrer and motion, to settle, before trial, all question of pleadings, and if the opportunity is not embraced, defects should be held to have been waived, and the verdict should not be disturbed.” House v. Lowell, supra. Conceding it to be true, as alleged in this case, that two causes of action are united in one count, and- the damages are charged but once, and are predicated upon both causes of action, the pleading is not good, “but should be corrected by motion, before pleading over, to require the plaintiff to elect upon which cause to proceed, and that the other be stricken out.” Stevenson v. Judy, 49 Mo. 227. And if no such motion is made it will be deemed waived. Christal v. Craig, supra. The demurrer in this case, being for the improper joining, in the same count, of causes of action which could not be united in the same petition, was the proper remedy, if taken in time, but, being filed after answer and after the beginning of the trial, was waived. Our attention has been called to the case of The Southworth Co. v. Lamb (82 Mo. 242), where two causes of action were united in the same petition, which, from their nature, required separate suits, and where a motion was made at the close of plaintiff’s testimony to require him to elect on which he would proceed. Under the authorities above cited there should have been a demurrer to this petition before trial. But Ewing, Commissioner, says it “amounted to a demurrer, and, although coming a little late, was properly sustained.” It does not appear from the report of the case whether the plaintiff objected to this in the lower court. I cannot believe the court, in that case, have aimed to overthrow, without mentioning them, the long list of decisions holding to the rule, as I have stated it. The motion in that case was made in the middle of the trial and while the answer, of coarse, was on file. The court [94] remarked that it amounted to a demurrer, but it is fundamental that a demurrer and an answer are inconsistent pleading and cannot stand together. One is an admission, while the other is a denial. This court must, in accordance with the constitution of the state, look upon the last previous ruling of the supreme court as controlling authority; but when we are satisfied a rule, long established, and which is recognized by numerous , decisions of the supreme court, is not intended to be overthrown, nor the decisions intended to be overruled, we will still recognize the .rule, unless the last utterance of the supreme court is irreconcilable with it. • Our conclusion is that the judgment should be affirmed, and, with the concurrence of the other judges, it is so ordered,