Steele v. Brazier

NIXON, P. J. (after stating the facts) — It will be seen from the statement in this case that at the time of filing the petition, an attachment was sued out in aid of it; that there were numerous causes set out as grounds for such attachment, and, among others, subdivision fourteen of the attachment act, section 366, Revised Statutes 1899, which is as follows: “14. Where the debt sued for was fraudulently contracted on the part of the debtor.” Upon the hearing of the plea in abatement, the court found all the causes for attachment for the defendant except number fourteen, and sustained the attachment on the ground that the debt sued for was fraudulently contracted on the part of the debtor. The evidence on the hearing of the plea in abatement tended to prove the following state of facts: That the defendant was doing business under the name of the Siloam Springs Colonization Company, and that in consideration of the sum of eighty dollars paid to the defendant,' he executed and delivered to the plaintiff two shareholders' contracts for deeds, the form of which has been set forth in plaintiff's second amended petition; that twenty-nine other contracts or certificates were issued to different persons which were assigned to the plaintiff; that the defendant, in order to induce the plaintiff and the other parties to enter into the contract, made various false and fraudulent representations upon which plaintiff and those under whom he claims relied, and were thereby induced to pay the defendant the sum of $1,240; that the representations as to the quality, value, situation and surroundings were wholly false and fraudulent, made for the purpose of defrauding and cheating the plaintiff and those under whom he claims; and that there was a total failure of consideration. — 333 — I. The question first presented is whether the evidence of the plaintiff tended to show that his cause of action was for a debt fraudulently contracted within the meaning of the attachment act, the claim of the plaintiff in his petition being that his suit is for money had and received. This action was properly brought for money had and received upon two shareholders’ contracts purchased by the plaintiff of the defendant and set up in the first count of plaintiff’s second amended petition. [Johnson-Brinkman Co. v. Central Bank, 116 Mo. 558; Crigler v. Duncan, 121 Mo. App. 381; Clifford Banking Co. v. Donovan Commission Co., 195 Mo. 262; Shinnabarger v. Shelton & Lane, 41 Mo. App. 147.] The question as to what is a “debt fraudulently contracted” under this section of the attachment law has received repeated adjudications in this State, In Finlay v. Bryson, 84 Mo. 664, the Supreme Court gave the first authoritative interpretation. In that case the plaintiff sued for money had and received for his use, and stated that this money consisted of the proceeds of two pair of mules sold by the defendant as tlie property of the plaintiff and received by the defendant. The evidence tended to show that the defendant received four mules, the property of the plaintiff, with directions to sell the same and deposit the proceeds to the credit of the plaintiff, but that he sold the mules and converted the proceeds to his own use. An attachment was filed in aid of the plaintiff’s suit on the ground that the debt sued for was fraudulently contracted on the part of the debtor. The court in that case say: “The statute we are construing seems to proceed upon this principle, by allowing to sue on the debt, and prosecute an attachment against the debt- or’s property, for having fraudulently induced it.” The court further hold in that case that the evidence produced at the trial “fails to show that any debt was ever contracted at all by the debtor, not. to say anything of — 334 — the manner in which it must have been contracted to answer the language of the statute. . . . As a matter of fact he agrees to no debt, nor can he lawfully treat it as such. That privilege belongs to the' other side, not to him.” The case of Riley, Wilson & Co. v. Shelley Mfg. Co., 93 Mo. App. 178, was an action by plaintiffs to recover of the defendants the amount paid by them to the defendants as the purchase price of a quantity of catsup. The court there define a debt to be, “a sum of money due by certain and express agreement; it denotes any kind of a just demand.” And it is held that a demand created by the fraud of the defendant whereby he secures the money of the plaintiff is not a debt within the meaning of the attachment act, even though the law implies a promise on the part of the defendant to reimburse the plaintiff, and the following is quoted from the opinion in the case of Finlay v. Bryson, supra: “The fraudulent transaction referred to must culminate in a debt. The debtor must have been guilty of some material deceptive act, word or concealment, done or suffered by him with the intent to induce the opposite party to consent to the debt. . . . But the unlawful conversion of property or money results only in damages so far as the acts of the wrongdoer are concerned. As a matter of fact, he agrees to no debt, nor can he lawfully treat it as such. That privilege belongs to the other side, not to him.” In the case of Sunday Mirror Company v. Galvin, 55 Mo. App. 412, it was held that “the conversion of money, though fraudulent on the part of the tortfeasor, will not constitute a fraudulent contraction of a debt within the purview of the statute defining the grounds of attachment.”- Referring to the opinion in the case of Finlay v. Bryson, supra, the court say: “The reasoning of the learned commissioner is to the effect that, where the gravamen of the complaint lies in tort, there can be no dett within the meaning of the attachment — 335 — law. Thus, if the right of recovery is based solely on the wrongful conversion of property, the right of recovery does not rest in debt, but is one for damages resulting from the wrongful acts of the wrongdoer. ... To authorize an attachment for a debt fraudulently contracted, the conduct of the defendant must have culminated in a debt.” The principles laid down in these decisions leave no doubt as to how the question now before us should be disposed of. The cases cited cannot be distinguished in their essential facts from the present touching the right of attachment. The case of Finlay v. Bryson, supra, being the last previous ruling of the Supreme Court on this question of law, is controlling on this court. [Constitution, Amend. 1884, section 6, R. S. 1899.] We therefore hold that the plea in abatement should have been sustained and the attachment dismissed. II. The causes of action in this case were assignable under section 540 of the Revised Statutes of 1899, which provides that every action shall be prosecuted in the name of the real party in interest except as otherwise provided in the next succeeding section, “but this section shall not- be deemed to authorize the assignment of a thing in action not arising out of contract.” This section would seem to authorize the assignment of every thing in action arising out of contract, and to make a distinction as to what is and what is not assignable. The action for money had and received in this case was an action for a thing arising out of contract under this section of the statute, and was accordingly assignable. Dean v. Chandler, 44 Mo. App. 338, where, in an action for fraud and deceit, the cause of action for such deceit was held to be assignable. — 336 — III. The statute in regard to amendments in the State of Missouri- was intended to he so liberalized as to cure all sorts of defects of form and permit the correction of many errors in the substantial features of the cases on timely application, but a new or different cause of action cannot be supplied by an amended petition, such amendment constituting a departure. [Heman v. Glann, 129 Mo. 325; Ross v. Mineral Land Co., 162 Mo. 317.] The original petition in this case is as follows (caption omitted). “Plaintiff for his cause of action states that on or about the--day of —:—, 1907, the defendant, with intent to cheat and defraud the plaintiff falsely and fraudulently, represented and stated to the plaintiff that the defendant Avas the owner in fee of ten thousand acres of valuable agricultural lands suited to the profitable production of all kinds of grain, fruits, vegetables and grasses in abundance at and near the town of Si-loam Springs in HoAvell, Douglas and Ozark counties, Missouri, that several hundred acres of said lands was in cultivation and well improved Avith valuable residences and barns thereon; that in order to further his said scheme to cheat and defraud plantiff, the defendant exhibited certain literature containing photographs of valuable farm residences and barns and groAving wheat fields which said pictures the defendant represented to be true and correct representations of the buildings and growing grain on said land, and the plaintiff believing said false representations and pretenses and being deceived thereby Avas induced by same to pay the defendant the sum of one thousand mid forty dollars. Whereas, in truth and in fact the defendant on said date did not oavu any land whatever in said counties, and whereas the pictures and illustrations in the literature exhibited to plaintiff as aforesaid by the defend — 337 — ant was not a correct representation of the buildings and growing grains and fruits at or near said town of Siloam Springs, but were representations of farms, grains and fruits located and growing elsewhere than on said land, all of which said facts the defendant then and there well knew. “Wherefore plaintiff prays judgment for sum of $1,040 and costs.” Now the tests under the decisions of this State for determining whether the amended petition is an amendment or the substitution of a new cause of action are: (1) That the same evidence will support both petitions; (2) That the same measure of damages will apply to both. If both of these fail, the new pleading is not an amendment, but a substitution of a new cause of action. [Scovill v. Glasner, 79 Mo. 449; Grigsby v. Barton County, 169 Mo. 221.] The purpose of determining whether the last amended petition in this case is a departure from the original cause of action, the second or last amended petition must be compared with the original petition, though no objection was raised to the first amended petition on the ground of departure. [Purdy v. Pfaff, 104 Mo. App. 331.] The amendment in this case of the first cause of action was not a departure. The statement of the plaintiff’s cause of action in his original petition was very indefinite, but this indefiniteness was removed in his second amended petition. He had a right to amend by making that definite and certain which was before indefinite and uncertain in his original petition, and such amendment would not constitute a departure. [Pratt v. Walther, 42 Mo. App. 491.] In this case, the first count in the original petition and the first count in the second amended petition will stand the two tests heretofore mentioned, — that the same evidence would support both pleadings, and the same judgment would be rendered in the one case as in the other. — 338 — If there was no departure as to the first count in. plaintiff’s second amended petition, we know of no rule of pleading that would deny the plaintiff the right by subsequent amendment to insert other causes of action, provided they were separately stated and consistent with each other under the statutory rules of pleading. The plaintiff cannot be allowed to introduce an entirely new cause of action, but may by amendment introduce such additional causes of action as under the provisions of the statute could be united in the same petition. Such is the general rule in those States that have adopted the modern codes of pleading and practice. [Section 593, R. S. 1899; 39 Am. Dig. (Cent. Ed.), Col. 2035, sec. 686.] IV. In this case we have found that the cause of action could be assigned because it arose out of contract. The remaining question is, Were the causes of action sued upon in this case for money had and received assigned to the plaintiff? It will be recalled that the shareholders’ contracts in the Siloam Springs Colonization Company were assigned to the plaintiff in the following form: “I hereby assign the within contract for a deed to W. H. Steele. (Signed) W. J. Vannix.” The contract with Vannix was the basis of the second count in plaintiff’s second amended petition, and the other assignments to the plaintiff of the shareholders’ contracts for deeds were in the same form. This assignment upon its face only carried to the plaintiff the title to those shareholders’ contracts with the defendant and all the rights which may have inhered in them; they gave the plaintiff, as assignee, no right or title to bring the present action for money had and received. The right given to the assignee under the shareholders’ contracts and the right to sue for money had and received are entirely distinct causes of action, and the assignment of the — 339 — shareholders’ contracts did not convey to the plaintiff the right to bring the present action. We find no sufficient evidence to justify the charge that this was a lottery scheme. In consideration of the view that we have taken of this case, we deem it unnecessary to discuss other questions that are raised in the record. The judgment is accordingly reversed and the cause remanded with directions to set aside the judgment and grant a new trial on the plea in abatement and to grant a new trial on the merits. Gray, J., concurs; Gox, Jnot sitting.