Rider v. Kirk , 82 Mo. App. 120 ( 1899 )

ELLISON, J.

This is an action founded on a petition of several counts and may be stated to involve the validity of several claims against defendant which have been assigned to plaintiff. The judgment in the trial court was for plaintiff.

The case was originally brought against defendant and one Enberg in which the liability of defendant was sought to be fixed by reason of the acts of Enberg as his agent. At the close of the trial and before the case was finally submitted plaintiff dismissed as to Enberg. The defendant resided in St. Louis and Enberg in Linn county where the action was brought. Service was had by serving summons on Enberg in Linn county and by serving summons on defendant in St. Louis. The petition was based on an alleged right to hold Enberg as agent and defendant as an undisclosed principal in the same action. A demurrer thereto was filed and overruled and defendant then answered over to the merits and went to trial. There was evidence tending to support the charge that defendant was principal for Enberg and we need only look tc the legal phase of the case as it has been presented.

It is insisted that there was no cause of action stated in that it was sought to hold both the agent and the undisclosed principal in the same petition; and that defendant, residing in St. Louis, Missouri, and the case being dismissed as to En-berg, the only resident where the suit was brought, the court had no jurisdiction over the person of defendant. If no cause of action was stated, it arose from the fact of a misjoinder. Therefore the defect was more in the nature of a misjoinder or defect of parties than from a lack of statement of a cause of action. "When the case was dismissed as to Enberg it left a cause of action stated against defendant. But as defendant was a non-resident and not beingfound in Linn county, plaintiff could not, as an original proposition, maintain a personal action against him there. At the same time there was nothing to prevent him from waiving this right to assert non-jurisdiction and submitting himself -to ¡the jurisdiction of that court. And this he did by 'answering the petition and going to trial, without objection to jurisdiction. Meyer v. Broadwell, 83 Mo. 571; Pry v. Railway, 73 Mo. 123; Peters v. Railway 59 Mo. 406.

It is contended that the court erred in modifying instruction 9 for defendant, in reference to the counts of the petition for borrowing money, by adding to the proposition, that defendant was not liable for borrowed money unless he authorized Enberg to so borrow, !t'ke words, “unless the money was necessary to carry on the business of buying horses.” The money borrowed was for feed for and care of the horses after purchase and before shipment to defendant. Money for such purpose was necessarily included in the authority to buy the horses and no error was committed. These remarks dispose also of the objection to1 the modification of instruction 15.

It is conceded that there was error in including interest on the claims which accrued before suit was brought, since "there was no demand. This excess amounts to $26.50 and is remitted by plaintiff. General objection was made to the instructions which allowed the excess.

An abstract of much less proportion than the one furnished here would have been ample to have called attention to this error and hence we have concluded to divide the costs of the appeal equally between the parties. The judgment will therefore be affirmed less the $26.50 excess of interest and costs will be divided as stated.

All concur.