Pierce v. Bicknell , 11 Kan. 262 ( 1873 )

The opinion of the court was delivered by

Valentine, J.:

The petition in the court below, together with the exhibits attached thereto, state among other things the following facts: The plaintiff in error, Thomas Pierce, (who was defendant in the court below,) and one J. A. Prutsman, who was also a defendant below, entered into a certain written contract as follows: Prutsman was to build a certain frame house for Pierce, for which he was to receive $3,000 as compensation, and Pierce was then to lease the house to Prutsman for a hotel for $1,000 per year. Pierce was also to make certain other improvements on the premises on which the hotel was to be built. After, this contract was made Prutsman and the defendant in error, Bicknell, (who was plaintiff below,) entered into a certain other written contract as follows: Bicknell was to build said house for which he instead of Prutsman was to receive the said $3,000■compen-sation. Bicknell however was to do some extra work on the house; and furnish some extra material, for which he was not to receive any additional compensation. This extra work and material were specified in the written contract entered into between Prutsman and Bicknell. Prutsman also indorsed on the written contract between himself and Pierce the following written order, to-wit:

“ Mr. Thomas Pierce will please make the payments specified in the within contract to I. S. Bicknell when the' same become due and payable according to the terms thereof, and the terms of the sub-contract between said Bicknell and the undersigned. Neosho Falls, April 25th, 1870.

“J. A. Prútsman.”

Pierce verbally assented to and accepted this order. Bicknell built said house in accordance with the said two written contracts, and also with the consent and at the request of Pierce furnished other extra material for said house, and did other extra work thereon, which other extra work and material were not included in either of the said written contracts, and which extra work and material were worth $1,472. Pierce made several payments to Bicknell for building said house, but there is still due thereon $350 on the two written contracts and the written order, and $1,472 on the parol contract between Pierce and Bicknell for the extra work and material. Pierce refused to pay any of this amount, and Bicknell then sued both Pierce and Prutsman 'for the same. Bicknell obtained a judgment against Pierce alone for $525.50, and this is the judgment which Pierce now by this petition in error seeks to have reversed.

The first error assigned is, that the court below erred in overruling the motion of the defendant below to require the plaintiff' to separately state and number his several causes of action. The petition below contained but one count. All the foregoing facts were stated in this count, and in the exhibits attached thereto. This count was divided into separate paragraphs, and the paragraphs were separately numbered. But there is no pretense, that the several causes of action stated’ in said petition (provided more than one cause of action were stated therein,) were separately stated or numbered. No attempt was made to separately state the different causes of action, but portions of different causes of action were blended in the same paragraph. But the main question is, was there more than one cause of action stated in said petition ? If there was, we suppose it will be conceded that the court below erred in overruling the defendant’s motion. Code, § 88; Jackson Co. v. Hoaglin, 5 Kas., 558, 561, 562; Forsyth v. Edminston, 11 How. Pr., 408; Waller v. Raskan, 12 How. Pr., 28. We think there were certainly two causes of action stated in said 'petition in favor of the plaintiff Bicknell and against the defendant Pierce — one for the $350, due on the original contract between Pierce and Prutsman, the order indorsed thereon, and the contract between Prutsman and Bicknell, and the other for $1,472 due on the verbal contract-between Pierce and Bicknell. And these two causes of action should have been separately stated and numbered. It may be that in some cases the plaintiff has an election to treat the transactions constituting his claim as constituting one cause of action only, or as constituting two or more separate causes of action; but this is not one of such cases. The two causes of action involved in this case do not affect the plaintiff alike, or the defendant alike; and each is subject to separate and independent defenses. The first is subject to all the defenses which could be set up against Prutsman, if he had built the house, and were the plaintiff. The second is subject only to such defenses as Pierce might have against Bicknell alone. A certain defense, for instance, -might be good against one of said causes of action, and not good as against the other. In all such cases -the defendant has a right to have the different causes of action separately stated and numbered, so that he may demur or answer to them separately. It is not claimed that the original contract between Pierce and Prutsman was ever abandoned, or cancelled, or superseded by the contract between Prutsman and Bicknell, or by the parol contract between Pierce and Bicknell. Nor is it claimed that-the subsequent contracts were merely modifications of the original contract. Nor is it claimed that the three contracts were by any means merged, or that they all three together formed but one contract, as perhaps they would have done if all the contracts had been between Pierce and Bicknell alone. On the contrary, said original contract was allowed to continue in full force. The two written contracts were not alike, and the parol contract was not like either. Each contained many stipulations that were not in the other. The stipulations for leasing the premises for a hotel, for digging and walling a well, for digging and walling a cellar, for building outhouses, etc., which were in the first contract, were not in the second; and many stipulations which were in the second, were not in the first; and the third was wholly unlike either of the others. Bicknell did not at all suceeed to all the rights and liabilities of Prutsman, but he succeeded to a portion of them only, with other and additional rights and liabilities. With reference then to these two written contracts, and Prutsmau’s order indorsed on the original contract, Bicknell was only a sub-contractor. But with reference to the subsequent parol contract entered into between Pierce and Bicknell for the extra work and material, Bicknell was an original contractor, Prutsman having no connection with said parol contract. Bicknell then sued Pierce really in two capacities, first, in the capacity of a sub-contractor, and the assignee of Prutsman’s claim, for $350; second, in the capacity of an original contractor, for his own claim for $1,472,

It is not necessary to discuss the liability of Prutsman, and we do not think that it is necessary to discuss any of the other questions propounded by counsel. It may be proper however for us to suggest that we think -Prutsman was properly made a party defendant in this action, and that we think it would be proper for the plaintiff below before the next trial to so amend his petition as to make it more definite and certain with regard to the steps taken to procure a mechanic’s lien.

The -judgment of the court below is reversed, and cause remanded for further proceedings in accordance with this . opinion.

All the Justices concurring.