National Telephone Directory Co. v. Mermod, Jaccard & King Jewelry Co.

CAULFIELD, J. Suit originating before a justice of tbe peace for breach of contract. The plaintiff bad judgment, and tbe defendant has appealed. No bill of exceptions was filed and tbe only question before us arises upon tbe record proper. Plaintiff did not file any statement or pleading as such before tbe justice, but commenced its suit before tbe justice by filing an instrument of writing, executed by tbe defendant, as follows: ‘‘$275.00 St. Louis, Aug. 3rd, 1907. National Telephone Directory Co. Frisco Building. You are hereby authorized to insert one page advertisement for which we will furnish copy, to occupy inside front cover in tbe St. Louis classified telephone directory for one issue, commencing September, for which we will pay you, or order, tbe sum of $275.00. Tbe sum of $275.00 subject to conditions on tbe back of this contract. Mermod 8$ Jaccard Jewelry Co., Per Weiss, Ad. Mgr.” On tbe above instrument tbe following endorsement appears: “It is mutually agreed that a key shall be used in connection with tbe within advertisement, for tbe purpose of tracing sales thereto, and if said sales amount to $750, prior to tbe issue of tbe January directory, then tbe Mermod, Jaccard, King Co., agrees to pay tbe National Telephone Directory Company, or order, tbe sum of $275. “It is understood that tbe cost of tbe plates [675] from which the advertisement is to be printed shall be paid by the Mermod, Jaceard, Rang Company.” Defendant contends in effect that the filing of /such an instrument cannot be a compliance with section 7413 of the Revised Statutes of 1909, which provides that “when the suit is founded upon any instrument of writing purporting to have been executed by the defendant, and the debt or damages claimed may be ascertained by such instrument, the same shall be filed with the justice, and no other statement or pleading shall be required.” It appears to be conceded that the instrument filed was “executed by the defendant” and that the damages claimed may be “ascertained” by it, but the defendant asserts that it is not a “written obligation,” nor a “contract,” but is a mere “offer” which, until accepted by the plaintiff, created no liability; that “it is nothing but a portion of the plaintiff’s evidence wholly insufficient by itself to constitute a written obligation on the part of the defendant.” Defendant also adopts as a portion of its argument the following language used by Judge Bond in Rechnitzer v. St. Louis Candy Company, 82 Mo. App. 311: “That order is not the foundation of the suit for services rendered; it is only evidence of the authority to perform services; it is no evidence of the actual performance of such services and unless this was shown, no cause of action could arise, hence we do not see how the filing of a portion of the plaintiff’s evidence could validate an abortive statement of his cause of action.” Summed up, defendant’s contention seems to be, that in order for the filing with the justice to be sufficient by way of pleading, the instrument must itself evidence that plaintiff assented to its terms and rendered full performance on its part. The infirmity of this contention lies in the circumstance that the whole matter is governed' by the • statute and the statute does not require that the instrument [676] possess the qualities mentioned. The statute, so far as concerns this case, requires nothing more than the suit be “founded upon” the instrument, and we are not aware that in order for a suit to be founded'upon an instrument .the latter must constitute plaintiff’s entire evidence or carry on its face all the evidence necessary to make defendant’s obligation effective and presently enforceable. It is too evident to need serious presentation that if defendant executed and delivered the instrument sued on and plaintiff duly assented to its terms, met its conditions and rendered performance on its part, but defendant failed or refused to pay the sum stipulated as agreed, plaintiff would have an action against the defendant founded on the instrument; and this, too, though evidence aliunde might be necessary to prove such execution, delivery, assent and performance. Such proof would merely establish that plaintiff’s action is founded on the instrument, which alone prescribes the terms, and measures the extent, of defendant’s obligation. The suit, in such case, would be for breach of defendant’s obligation contained in the instrument, and not “for services.” It would be founded on the instrument of writing. Under these circumstances the Legislature has seen fit to provide that the filing of the instrument with the justice is sufficient without any other pleading or statement. Such filing is deemed sufficient to properly apprise defendant of the extent and nature of plaintiff’s claim and to let in all the evidence necessary to prove that defendant’s obligation contained in the instrument is effective and presently enforceable. We hold that in the case at bar the filing of the instrument was sufficient by way of pleading on plaintiff’s part, and in the absence of a bill of exceptions, the judgment being for plaintiff, we assume that sufficient evidence aliunde, was adduced to establish defendant’s present liability thereon. This holding we conceive to be in accordance with those in Collins [677] v. Burrus, 66 Mo. App. 70, and Collins v. Kammann, 55 Mo. App. 464. The language defendant relies on from Reclmitzer v. St. Louis Candy Co. was not onecessary to the decision of that case, and in so far as it may he considered contrary to the view herein expressed, is disapproved. The judgment is affirmed. Reynolds, P. J., and Nortoni, J., concur.