Brashears v. Strock

46 Mo. 221

• Court: Supreme Court of Missouri
• Decided: March 15, 1870
• Status: Published

Opinion

Bliss, Judge,

delivered the opinion of the court.

The plaintiff brought suit against defendants before a justice of the peace, and filed the folloAving statement:

“M. S’. Smock, A. Seibert, H. Garlock, Jesse Hall, John G. Kelly,

“To Richard Brashears.$50. To fifty dollars.”

Upon the trial he verbally charged them Avith violating a contract to take a kiln of brick he Avas to burn for them, and obtained a judgment for $50, from Avhich defendants appealed. In the Circuit Court the plaintiff, on leave, amended his statement to read as follows :

“Hiram Strock, John Kelly, Haeey Garlock, Jesse Hall, and Aaroh Seibert,

In account Avith Richard M. Brashears, Dr.

“To damages in failing to comply Avith agreement to take a kiln of brick Avhich they engaged said Brashears to make.$50.”

This change in the account Avas duly excepted to, and the statute of frauds Avas also interposed, the 'defendants claiming that the contract was a verbal one, and not to be performed within a year. Rut the plaintiff again obtained judgment, which was affirmed in the District Court, and defendants bring the case here. They first claim that the change in the statement of the claim was a change in the cause of action, which the statute (Wagn. Stat., ch. 185, p. 850, § 19) forbids. The following is the section : “ The same cause of action, and no other, that was tried before the justice, shall be tried before the appellate court upon the appeal.” This does not forbid a change in the statement of the same cause of action, but only a change in the cause of action itself, and it is not pretended that in this case a different cause Avas prosecuted in the Circuit Court from what had been tried before the justice. So, then, there was no violation of this statute.

But the original paper filed with the justice was about as near no statement as could well be made. It gives the names of the parties and the amount claimed, but wholly fails to be a “statement of facts constituting the cause of action,” as is expressly required when the suit is not founded on account or instrument of writing. (See Wagn. Stat., ch. 178, p. 814; § 13.) This court has been very liberal toward proceedings before justices of the peace, and very slight indications of the facts constituting the cause of action should bo held to be sufficient. But there should be something to advise the opposite" party what he is sued for, and in this instance there is nothing at all.

The defect Ayas not waived in the Circuit Court, for the first step taken 'by the defendants Avas to move to dismiss for want of a statement before the justice ; hence they saved the point. We find no fault with the amendment in the Circuit Court, had there been anything to amend; for a loose and uncertain statement may Avell be made more certain and definite, if there is no change in the cause of action. There is nothing in the second objection, as, according to testimony, the brick were to be made within a year.

The judgment is reversed and the cause dismissed.

The other judges concur.