author: VALLIANT, C. J.

text:
    THE STATE ex rel. KANSAS CITY et al. v. OLAP A. LUCAS, Judge.
    In Banc,
    July 1, 1911.
    1. PROHIBITION: Practice: Motion for Judgment on Return: Admission of Facts. Where relators file a motion for judgment on the return of respondent to a writ of prohibition, the court, for the purposes of that motion, will take the statements in the return to be true.
    2. CLERKSHIP IN CITY DEPARTMENT: Dismissal: Injunction: Title to Office. A suit by injunction by clerks and employees in the waterworks department of a city, to restrain the civil service board of the city from replacing them with other persons unless they submit to an examination, basing their claim to their positions upon a charter provision, and upon an ordinance which they contend has not been annulled by a charter amendment, does not involve title to office, and the questions are cognizable in equity, and a court of equity has jurisdiction to restrain the city officers from ousting them until it can determine whether or not ordinances and charter permit their dismissal. If their rights depend on whether or not a certain ordinance is in force, and the defendants are trying to turn them out, a court of law could give them no adequate protection.
    3, -: Order to Deliver Warrant: Contempt for Disobedience. A court of equity has authority to order and compel the comptroller of a city to deliver to a servant of the city a warrant already issued; and a proposition that a court of equity has no jurisdiction at a prelijninary hearing to order the comptroller to pay money to such servant under the pains and penalties consequent upon contempt of the court’s order, has no application to such a situation.
    4. -: Power of Officers to Dismiss: Prohibition. A court of equity has jurisdiction to enjoin and restrain city officers from removing and dismissing employees in the city’s waterworks department, if they have no such authority under the charter and ordinances; and since it is the province of the trial court, upon a trial and hearing, to determine whether or not the city officers may legally exercise that authority, and since error in the court’s ruling may be corrected by appeal or writ of error, the Supreme Court will not prohibit the judge of the trial court from determining the authority of the city officers to remove and dismiss said servants and employees.
    Prohibition.
    Writ denied.

      John G. Park and A. F. Smith for relator.
    (1) A court of equity has no power to try the title to a public office or position. State ex rel. v. Aloe, 152 Mo. 466; State ex rel. v.- Withrow, 154 Mo. 397; Arnold v. Henry, 155 Mo. 48; State ex rel. y. Seehorn, 143 Mo. App. 182; Mullin v. Tacoma, 16 Wash. 82; Corscaddon v. Haswell, 177 1ST. Y. 499. This rule applies to employees as well as to officers. Miller v. Warner, 59 N. Y. Supp. 956; Thomas v. Board, 56 111. 351; Healey v. Ditton, 39 La. Ann. 503; Morgan v. Nunn, 84 Fed. 551; Page v. Moffitt, 85 Fed. 38; White v. Berry 171 U. S. 366; Jones v. Williams, 139 Mo. 36. The proper remedy in such eases is mandamus. People ex rel. v. Sutton., 88 Hun, 173; People v. Cahill, 188 N. Y. 489; Sutliffe v. N. Y., 132 App. Div. 831; People v. Kearny, 44 App. Div. 449. (2) Whether the positions of plaintiffs partook of the nature of public service or whether they were a mere matter of employment, a court of equity will not order. specific performance of such contracts of employment. 22 Oyc. 856; 2 High on Inj. (4 Ed.), 1160; Arthur v. Oaks, 63 Fed. 310; Bronk v. Riley, 88 Hun, 489. (3) The order of the trial court was that defendants must not only keep the plaintiffs in service but they must pay them their salaries under penalty of commitment for contempt in case they refuse to do so. The result of this order would be imprisonment for debt, which is illegal. Sec. 16, art. 2, Constitution; Ex parte Crenshaw, 801 Mo. 447; Coughlin v. Ehlert, 39 Mo. 284; McMakin v. McMakin, 68 Mo. App. 57; In re .Kinsolving, 135 Mo. App. 131. (4) The temporary injunction granted by the court forbade the city from removing plaintiffs for any cause or in any manner, thus usurping control over the management of municipal affairs in violatiqn of the law. 2 Beach on Injunctions, see. 1373; Board v. Oklahoma, 12 Okla. 286; 2 High on Inj. (4 Ed.), 1240; Andrews v. Knox Co., 70 111. 65; In re Sawyer» 124 U. S. 200. .

      L. H. Waters and Leavel Hochland for respondent.
    The only question 'for the consideration of this court is whether the circuit court had jurisdiction over injunction suits of this character, and over the parties to said cause and of the subject-matter thereof, so as to determine whether said ordinance 1176 was a contract and whether said ordinance had been repealed or could, have been repealed, so as to affect rights of persons accruing thereunder, and also whether a person is a public officer or an employee. We respectfully submit that the circuit court had such jurisdiction. Wilson v.Berkstresser, 45 Mo. 283; State ex rel. v. Withrow, 108 Mo. 1; State ex rel. v. Eeynold, 209 Mo. 189; State ex rel. v. Eiley, 127 Mo'. App. 469; State ex rel. v. Stobie, 194 Mo‘. 51; State ex rel. v. Judges, 104 Mo. 419; State ex rel. v. Burckhartt, 87 Mo. 538.
   VALLIANT, C. J.

On the petition of relators a preliminary rule was entered April 25, 1911, addressed ,to the respondent, one of the judges of the circuit court of Jackson county, requiring him to show cause why a writ of prohibition should not be issued to forbid him taking jurisdiction in a canse pending in his division of the circuit court of Jackson county, wherein P. C. Folk and others are plaintiffs and the city of Kansas City and others are defendants. That is a suit in equity; the plaintiffs are clerks in the waterworks department of the city government. Three of the defendants constitute the Board of Civil Service Commissioners of that city, one is the Assessor and Collector of water rates, four compose the Board of Fire and Water Commissioners, and one is the Comptroller. The petition in that suit states substantially as follows:

When the plaintiffs entered into the service of the city as clerks in the waterworks department there was an ordinance of the city having special reference to employees in that department of the city’s service, which is section 1176, Eevised Ordinances of 1898, which provides: “That hereafter- no person shall be appointed, employed or discharged in any branch of the water works service, for or on account of political considerations. That the Board of Public Works and the Assessor and Collector of water rates, each in respect to the employees in their respective branches of the waterworks service, shall have the right to suspend and discharge employees under their control and direction for cause only; and this right shall be exercised only in the following manner, that is to say: Any employee who has heretofore or shall hereafter serve for such length of time as to determine his efficiency and fitness for any given place, which period is hereby limited to^ six months, may be suspended by said board and assessor and collector respectively for cause; but the board or collector making such suspension, shall immediately furnish the employee suspended a statement in writing of the cause or causes of suspension, and he shall in all cases be entitled to a hearing before being discharged.” The ordinance goes on to prescribe the mode of trial and the consequence of the result thereof. The petition further states that by section 1 of article 18 of the city charter of 1909 it is expressly provided that “all ordinances, regulations and resolutions in force at the time this charter takes effect, and not inconsistent with the provisions thereof, shall remain and be in full force until altered, modified or repealed by the Common Council; that that ordinance, 1176, was at the time the charter took effect and still is in full force and effect,” and its provisions secured to said city in said waterworks service, qualified and faithful employees, and provided for said water works department a civil service, based on merit, and that said section was not and is not inconsistent with the provisions of said charter relating to civil service, and has not been altered, modified or repealed by the common council,” and that by virtue of the provision of that ordinance the plaintiffs are not amenable to the civil service examination provided by article 15 of the bharter.. It is also alleged that on entering the service of the city under the terms of the ordinance, a contract was created between the employee and the city, and as long as he faithfully performed his duty he could not be discharged except as provided by the ordinance; that plaintiffs have performed and are still performing their duties as clerks in the waterworks department and are entitled to their pay as such, and it is the duty of the defendant the Comptroller to issue warrants therefor on the City Treasurer, but that he has refused to do so; that the defendants the Board of Fire and Water Commissioners, are not under the jurisdiction of the defendants the Board of Civil Service Commissioners and have no right to remove the plaintiffs except for cause and in the manner as provided in ordinance 1176; that the-defendants the Civil Service Commissioners have no. right to require of the Board of Fire and Water Commissioners that they discharge employees to make places for persons whose names have been given them by the Board of Civil Service Commissioners; that the defendant the assessor and collector of water rates, has a list of persons furnished him by the Civil Service Commissioners and threatens to put them in the places, of the plaintiffs and will do so unless restrained by the injunction which is prayed, and that defendants the Fire and Water Commissioners will approve the appointments. There are also some statements in the petition designed tó challenge the validity of article 15 of the charter, but for the purpose now in view they are immaterial. Plaintiffs pray a temporary restraining-order to restrain the defendants from “interfering or attempting to interfere with the plaintiffs in their said positions until a hearing of this cause can be had and upon such hearing a temporary injunction be issued herein which plaintiffs pray may upon a proper showing-be made permanent,” and for general relief.

On the filing of the petition an order issued restraining the defendants “until the further order of the court from in any manner interfering with the plaintiffs, or either of them, in their positions as clerks in the office of the assessor and collector of water rates of Kansas City, Missouri, and from appointing or attempting to appoint any person or persons to the positions of the plaintiffs, or either of them, and-from doing any act affecting the positions of the plaintiffs or either of them, or their compensation for their services as such or their right to said positions in said office of the assessor and collector of water rates.” The order further directed. that the plaintiffs give bond, which was done, and that the defendants appear on March 30, 1911, and show ■cause why a temporary injunction should not issue.

On April 8th, there was an amended petition filed, which was substantially the same as the original petition, with the addition of three new names as plaintiffs; ■on the filing of the amended petition a restraining order like the one above mentioned was made.

The parties appeared by their attorneys in court on March 30th, and arguments for and against the granting of the injunction were heard. Counsel for defendants objected to the jurisdiction of the court, ■first, because a court of equity has no jurisdiction to ■determine a contest for a public office; second, the ordinance, 1176, on which plaintiffs base their case, had been repealed. Affidavits on both sides were filed and the application for an injunction was taken under •advisement. While the matter was so pending, one of the plaintiffs, J. J. McIntyre, filed a petition in the ■cause stating that the defendant Gus Pearson, the Comptroller, had, since the issuance of the temporary restraining order, refused to deliver to him a warrant for his salary for one half the month of March, and prayed an order on him to show cause why he should not be punished for contempt as for disobedience of the restraining order.

It is alleged in the petition of the relators herein that •on the filing of that petition a citation issued as prayed •and that on the return thereof the court made the following order:

“Now this day, this cause coming on for hearing upon the order upon Gus Pearson to show cause why he •should not be punished for contempt (of- court) it is •shown to the court that a warrant of Kansas City for the compensation of J. J. McIntyre, one of the plaintiffs herein, was issued by Kansas City and held by the ■defendant, Gus Pearson, comptroller of said city, and uot delivered to the said J. J. McIntyre, and said Gus Pearson showing to the court that he was advised by his counsel that said warrant should not [have] been issued to said J. J. McIntyre for the period from March 15th to April 1st, as it appears on its face, [but] only from March 15th to March 23d, the day when the Board of Civil Service Commissioners published an eligible list for the position occupied by said J. J. McIntyre; and
“Whereas, it is the order of this court that said warrant should be turned over to said J. J. McIntyre,, and that he should be paid his wages from March 15,. 1911, to April 1, 1911.
“It is therefore ordered that on the delivery, of said warrant to said J. J. McIntyre the said Gus Pearson shall be purged of contempt in this action, and that the cost of said contempt proceedings shall be taxed against said Gus Pearson, and that on the payment of such costs the said Pearson be purged of contempt.”

Thereafter on April 15, 1911, the court made the following order:

“Now on this day come the plaintiffs by their attorneys and the defendants by their attorneys and the court having read plaintiff’s petition and the affidavits filed therewith and the arguments of counsel, and it appearing to the satisfaction of the court that upon the matters presented to the court the plaintiff and each of them are entitled to a temporary injunction as. prayed for in their petition. It is therefore ordered by the court that a temporary injunction be and is hereby granted enjoining the defendants and each of them, their agents, servants and employees, until the further order of this court, from in any manner interfering with the plaintiffs or either of them in their positions as clerks in the waterworks department in Kansas City, Missouri, and from attempting to appoint any person or persons to the positions of the plaintiffs or either of them, and from doing any act affecting the positions of the plaintiffs or either of them, or their compensation for their services as such -or their rights to said positions in said waterworks -department. ’ ’

The order required plaintiffs to give bond which was done.

The respondent filed his return herein on May 8, 1911, and on the same day relators filed their motion for judgment on the return. We must, therefore, for the purpose of that motion, take the statements in the return to be true. The return sets out all the orders made in the cause pending in the circuit court, and as stated in the return they do not differ from those stated in relators ’ petition, except in one clause in the order of April 15th, in the contempt proceeding. As ■stated in the relators’ petition the order in that proceeding contained these words: “Whereas, it is the order of this court that said warrant should be turned over to said J. J. McIntyre and that he should be paid his wages from March 15, 1911, to April 1, 1911.”

But the words “and that he should be paid his wages from March 15th to April 1, 1911,” are not in the order.

In the return it is said:

“That after the issuance of the restraining orders hereinbefore set out it was agreed by and between C. B. Leavel, of counsel for plaintiffs, and A. F. Smith, ■of counsel for defendants, in the presence of this respondent, that said Smith would have said defendant Pearson deliver the warrants which were already drawn in favor of these plaintiffs, and which were- in said Pearson’s hands only for the purpose of turning the same over to said plaintiffs; that said Pearson did turn over all of the warrants belonging to the plaintiff except the warrant of J. J. McIntyre, which warrant said Pearson refused to turn over to said McIntyre, giving as his reason for so refusing that he had been instructed to refuse to. do so by said Smith; that on account of the refusal of said Pearson as aforesaid, the court made the following order:
“ ‘Upon the petition of J. J. McIntyre for contempt, verified by affidavit, it is ordered that citation issue to Gus Pearson, one of the defendants herein, to appear before the Hon. O. A. Lucas, Judge of Division No. 2 of this court, on the 15th day of' April, 1911, at 9:30 o’clock a. m., and show cause, if any he has, why he should not be punished for a contempt in disobeying the order of this court, in failing to deliver to said J. J. McIntyre a warrant for his salary as a clerk in the office of the Assessor and Collector of Water Rates of Kansas City, Missouri, for the last half of the month of March, 1911.’
“That on said 15th day of April, 1911, said Pearson also appeared before said court, and upon the statement of his said counsel that the failure to turn over said warrant was due to the advice of A. F. Smith, and upon the agreement of parties and promise ■of said Pearson to turn over said warrant to said McIntyre, this court purged said Pearson of contempt, on payment of costs of citation; and thereafter, to-wit, on the 18th day of April, 1911, the said Smith requested the court to make the record entry as set out in the petition filed herein, but that the court on its own motion struck out the words ‘and that he should be paid his wages from March 15, 1911, to April 1, 1911, said order of the Board of Civil Service Commissioners, notwithstanding,’ so that the record entry reads and is as follows:
“ ‘Now on this day this cause coming on for hearing upon the order upon Gus Pearson to show cause why he should not be punished for contempt, it is shown to the court that a warrant of Kansas City for the compensation of J. J. McIntyre, one of the plaintiffs herein, was issued by Kansas City and held by the defendant Gus Pearson, comptroller of said city, and not delivered to the said J. J. McIntyre, and said Cus Pearson showing to the court that he was advised by his counsel that said warrant should not have been issued to said J. J. McIntyre for the period from March the 15th to April 1st, as it appears on its face, only from March 15th to March 23d, the day when the Board of Civil Service Commissioners published an eligible list for the position occupied by said J. J. McIntyre, and whereas it is the order of this court that said warrant should be turned over to said J. J. McIntyre.
“ ‘It is therefore ordered that on the delivery of said warrant to said J. J. McIntyre the said Gus Pearson shall be purged of contempt in this action and that the cost of said contempt proceedings shall be taxed against said Gus Pearson, and that on the payment of such costs the said Pearson be purged of contempt, to which order and ruling of the court the defendant Gua Pearson and his eodefendants objected and excepted and still except.’
“This respondent states to this Honorable Court that the warrant in question was, as the court was informed and believes, a warrant that had already been duly executed by the proper authorities, was made payable to said McIntyre, and was in the hands of said Pearson for the sole purpose of turning the same over to said McIntyre and taking his receipt therefor.
“That this court has never at any time made any orders for the payment of any money, or to compel or attempt to compel relator Kansas City to pay any money to the plaintiff in said cause.
“This respondent submits that the circuit court as aforesaid has jurisdiction of the subject-matter of said controversy ánd of the persons of the relators, and did not exceed its jurisdiction therein for or because of any of the reasons or causes mentioned in relators’ petition.
“Respondent further states that since being served with the order made by this Honorable Court respondent has refrained from all action in the premises and holds himself in readiness to comply with any orders of this court.”

In justice to the learned counsel who drew the petition for the relators in this proceeding, we deem it proper to say that we are satisfied that the misstatement in the petition was a mere mistake on his part. In his statement filed herein he states that he himself wrote the order in question and submitted it to the court; as written by him, it contained the words: “and that he should be paid his wages from March 15, 1911, to April 1, 1911, said order of the Board of Civil Service Commissioners, notwithstanding,” and he did not know that those words had been stricken out by the court. And apparently he had not discovered that fact when he filed his brief in this case, because on page 70, Point III, he says: “The order of the trial court was that defendants must not only keep the plaintiffs in service, but they must pay them their salaries under penalty of. commitment for contempt in case they refuse to do so. The result of this order would be imprisonment for debt, which is illegal.” And under that point in his brief authorities are cited to show that imprisonment for debt is forbidden by the Constitution.

The main points urged in relators’ petition for a writ of prohibition are enumerated as six, but they may be condensed into three, viz.: 1st, that a court of equity has no jurisdiction to try title to a public office or to a position 'in the public service; 2d, it has no jurisdiction to order defendants to pay wages to the plaintiffs under penalty of imprisonment in case they do not do so; 3d, it has no jurisdiction to deprive relators of their power of suspension or discipline or removal, over the plaintiffs in said action, in any manner or for any cause.

I. This is 110 contest for a public office; these plaintiffs are not officers, they are mere clerks, mere employees who have held their positions for years, and who say that these defendants, the Civil Service-Commissioners, have no authority at all to turn them out, and that the assessor and collector of water rates,, and the Board of Eire and Water Commissioners can discharge them only for cause after a hearing. They say that ordinance 1176 gives them that security for their positions and that that ordinance is in full force- and effect. ' On the other hand thé defendants say that ordinance has been repealed by the new city charter; contra, the plaintiffs say that the new city charter itself, in section 1 of article 18, expressly declares that all ordinances in force at the date of the adoption of the charter shall continue in force until altered or repealed by the common council. Those averments pro and con constitute a clear question of law for the trial court to decide. If that ordinance is still in force the plaintiffs are entitled to its protection, and if their rights under it are invaded or threatened, a court of equity has jurisdiction to enjoin the wrongdoer. A coui-t of equity alone'could give them protection. If their rights-depend on the question of' whether or not that ordinance is in force, surely a court of equity is competent to try that question. If that ordinance.is in force and these defendants are trying to turn these plaintiffs out, contrary.to its provisions, a court of law could give the plaintiffs no adequate remedy. Suppose they should wait until they are turned out and then go into á court of law with their suit for damages, what sort of an action would it be? Whom would they sue? How would the question of liability of the defendants in their several capacities be adjusted? If a court of law could afford them any redress at all it would be inadequate. But a'court of equity could take hold of the situation in the beginning, and if on a full and final hearing it: should adjudge the plaintiffs to he right in their contention it could prevent the wrong being done, and save the innumerable law suits; and on the other hand if it should adjudge that the defendants are right in their contention, that would he the end of the controversy; the plaintiffs would go out and peace would prevail.

II. The proposition that a court of equity has. not jurisdiction at a preliminary hearing to order defendants to pay money to- the plaintiffs under the pains and penalties consequent on contempt of the court’s order, is correct as an abstract proposition of law, but it has no application to the facts of this case. The circuit court made no such order and has not threatened to do so. The warrants which the court ordered turned over to the plaintiffs had already been issued by proper authority and placed in the hands of the comptroller to he delivered to them; he delivered all except one, and that one he withheld on the advice of the attorney for the relators, who, after complaint was made to the court, advised that it also be delivered, and it was done.

That was one of the main grounds urged in the petition of relators for the writ of prohibition and, as above shown, it rested on a misapprehension of the fact.

III. The proposition that a court of equity has no jurisdiction to deprive the relators of their power to remove the plaintiffs from their positions in any manner and for any cause, is based on the assumption that the defendants have that authority. Of course if they have such authority a court of equity cannot deprive them of it; but if they have it not, yet assume it and attempt to exercise it to the injury of the plaintiffs, a court of equity, may forbid them doing so. This court cannot assume that the relators have, or that they have not, the power claimed; the trial court must try that issue, and if it finds that the relators have that power it will dismiss the plaintiffs’ bill, but if it should find that they have not that power lawfully, it will forbid them attempting to exercise it. If the trial court should err in its conclusions on this question the relators have an adequate remedy by appeal. Of course the remedy is not as speedy as it would be if this court should, in advance of the final hearing in the trial court, decide the questions of law involved, but that may be said of every case that comes here on appeal. That fact would not justify us in taking out of the. hands of the trial court a case of which it has jurisdiction. In all that we have said above we have not intended to express any opinion on the questions to be tried by the chancellor in the cause • pending before him, but we have only meant to say that the circuit court sitting in equity has jurisdiction of the cause in question, and that a writ of prohibition will not lie to interfere with the due course of the trial in that court.

We are favored with a very interesting brief on the part of the relators on the questions of law involved in the cause pending in the circuit court, but it would be an unwarranted invasion of that court’s province if we should undertake to decide those questions.

Our conclusion is that' the preliminary rule to show cause should be dissolved and the writ of prohibition denied.

All concur.


source: Caselaw Access Project

author: BOND, C.

license: Public Domain

text:
    LAMPEL LAND & IMPROVEMENT COMPANY v. T. C. SPELLINGS et al., Appellants.
    Division Two,
    July 1, 1911.
    1. PLEADING: Answer: Inconsistent Defenses: Test. The test of the consistency of allegations in an answer is whether the proof of one disproves the other. Unless this happens the defenses, however diverse, are not inconsistent.
    2. -:-:-: Waiver. The inclusion in an answer of affirmative defenses contradictory to a defense of misjoinder • also included, is a waiver of the defense of misjoinder.
    3. —:-: -: Suit to Quiet Title: Misjoinder: Coupled with Affirmative Defenses: Waiver. All consistent defenses may be made in the same answer. But an answer in a suit to quiet title which sets up a general denial and a defense of misjoinder of persons and causes of action, together with a counterclaim or cross-petition in which defendant asserts title to that part of the land in suit claimed by him, denies that plaintiff has title, and prays for affirmative relief, is not consistent. Because of this repugnancy, defendant has no right to ask the Supreme Court to review the action of the trial court in refusing to sustain the objection of misjoinder.
    4. -: Misjoinder: Defect Not Appearing on Face of Petition: Reached by Answer. Misjoinder not appearing on the face of the petition is not open to demurrer. Objection thereto .is properly made by answer.
    5. EVIDENCE: Suit to Quiet Title: Abstract Books Declared Evidence by Statute: Mere Certificate not Admissible. Where the Legislature has enacted statutes making copies of certain abstract books, properly verified^ prima facie evidence of matters therein contained, a mere certificate or abstract of title made by a title examiner is incompetent to show any chain of title, ' and an objection to its admission in evidence should be sustained.
    3. -: -: -: Best Evidence. Where the Legislature has enacted statutes making copies of certain abstract books, properly verified, prima facie evidence of matters therein contained, one offering evidence of such matters should be required to offer the books themselves, or certified copies of their contents attested in the manner prescribed by statute.
    7, -: Existing Writings. The contents of existing writings cannot be proved by oral testimony until the failure to produce the writings themselves is satisfactorily explained.

      Appeal from Taney Circuit Court. — Hon. John T. Moore, Judge.
    Reversed and . remanded.

      Groom & McGonkey and Ball & Byland for appellants.
    (1) There was misjoinder of parties and of causes of action. (2) The admission in evidence of an abstract purporting to be certified from Taney County Abstract Company by Arthur P. Farrar, was error. Stewart v. Land Co., 200 Mo. 290. (3) The book or books concerning the contents of which the witness Groom was interrogated' were not offered in evidence, were not shown to be admissible, and it was error to permit the witness to testify as to a part of the contents. (4) The only competent, proof of title was introduced by appellants showing title in appellant Reynolds to the land mentioned in his answer, and title in the other appellants to the land mentioned in their answer.

      G. B. Sharp and G. A. Watson for respondent. •
    (1) If there was a misjoinder of parties and of .causes of action the objection to the petition on that account was waived by the allegations of the answer •of appellants. (2) The admission in evidence of the abstract was not error, when same was verified by the testimony of Groom, the owner of the “Chas. N. Groom Abstracts.” Laws, 1905, p. 148.
   BOND, C.

Plaintiff, a corporation, sues to quiet title to 1130 acres of land in Taney county, Missouri. This action was begun in 1903. Second amended petition was filed in 1906. -A number of persons were made defendants — of these George E. Reynolds filed a separate answer, claiming a part of the land mentioned in plaintiff’s petition. Four other persons filed separate answers, claiming jointly another and different part of the land. The case came on for trial on the 23d of April, 1906.

The plaintiff first showed that the deed records of the county were destroyed by fire in 1885, when the court house and all the public records therein were burned. Plaintiff then introduced in evidence an abstract of title to the land sued for “made by Taney County Abstract Company, Arthur F. Farrar, Mgr.” This abstract concludes, to-wit:

“No. 95. State of Missouri, County of Taney, ss.
“I hereby certify that I have examined the title to the premises described on sheet one of this abstract and find no conveyances of record in the recorder’s office of said county affecting the title to said premises, except as herein set forth, nor any judgments in any of 'the courts of said county against either of said parties which are liens upon said premises, or tax sales remaining uhcanceled, or taxes due and unpaid other than herein set forth. This abstract consists of 95 sheets numbered consecutively from 1 to 95 inclusive. In witness whereof, I hereto affix my name at office in Forsyth, Mo., this 18th day of August, A. D., 1903, at 1:35 p. m. . Taney County Abstract Co., by Arthur F. Farrar, Manager. ’ ’

Defendants. specifically objected to the admission in evidence of this abstract and excepted to the ruling of the court overruling their objection; Thereupon, plaintiff interrogated Mr. Groom for the purpose of proving by him that' certain recitals of said abstract were also contained in the book in the possession of Mr. Groom, which was one of the abstract books known as Layton-Mead abstract books, belonging to the witness, and which he had then with him. Defendants objected to each of these questions for the following reason: “What this book shows, at the page mentioned, it shows for itself, and it- is not competent for the witness to answer what the book shows, as the book show's for itself.” This objection was overruled, to which defendants duly excepted at the time. A number of other questions of the same nature were asked by plaintiff and objected to by defendants, whose objections were overruled, and exceptions duly taken.

The trend- of the questions and answers tended to show that the abstract or certificate of title introduced in evidence by plaintiff contained notations and recitals of conveyances of the land sued for, showing that it had been patented, and by subsequent conveyances had been vested in the plaintiff, but showing, also, that some of the mesne grantees had quitclaimed the respective portions of the land claimed by the defendants, and that the defendants were the ultimate grantees under said quitclaim deeds, and that defendant Geo. E. Reynolds was the final grantee as to the portion claimed by him under quitclaim deeds based on the sheriff’s deed for the sale of the land to pay taxes. All these recitals and entries of the abstract admitted in evidence, according to the testimony of Mr. Groom, were also contained in the book belonging to him. Plaintiff did not introduce the book itself nor offer to do so, and each and all of defendant’s objections to the admissibility of .such questions and answers, because not the best evidence, were overruled, and due exceptions saved.

Defendant George E. Reynolds introduced evidence of the sale of the portion of the land claimed by him to pay taxes and subsequent quitclaim deeds from the purchaser at the tax sale, running down to a quitclaim deed to himself. The other four defendants adduced evidence tending to show a series of quitclaim deeds beginning with the patentees of the land and ending in said four defendants. Defendant Reynolds gave evidence of claim and possession of the land described in bis answer, and the payment of taxes thereon by him and his grántors.

After hearing this testimony, plaintiff desired to amend its petition by inserting therein the offer to pay the taxes and cost of snch tax sale which had been paid by Reynolds and his grantors. Thereupon, the court permitted said amendment and adjourned any further proceeding in said cause to its next regular term; and the parties entered into the following stipulation: ‘ ‘ This cause is continued and it is agreed by plaintiff and defendants, Reynolds et al., that on the trial of the cause at the next term, or when it is tried, the testimony tapen by both parties, in the trial, heard at this term, can be introduced from, the stenographer’s notes, with the objections and exceptions, as far as taken, with the same force and effect as if the testimony was re-offered, and with the right to each party to offer snch other and additional testimony as they may desire. ’ ’ Thereafter, at the regular October term, 1906, of said court, defendant Reynolds, before any further proceedings were had in said cause, filed his application, supported by affidavit, for change of venue. Said application was based on two grounds: First, of prejudice on the part of the judge; and, second, that plaintiff exerted undue influence over the mind of the judge. The trial judge overruled said application for the reason that after the former hearing of said cause and amendment to plaintiff’s petition, and because defendant Reynolds was not then prepared to show the amount of taxes paid by himself and grantors on said land; and at his instance and request the cause was continued “for this purpose only and judgment withheld until the next regular term of the court.” Defendant Reynolds duly excepted to the action of the court. Thereupon, a decree was rendered, finding that plaintiff was .the owner in fee of all the land described in its petition, discharging all the defendants who had not answered, and finding specifically that the claim for the portion of the land made by Reynolds was void, and likewise that the- claims made by the other four defendants for another portion of the land were also void, hut decreeing in favor of said sets of defendants that they should respectively recover taxes paid by them or on their behalf in the sums of $251.11 and $80.50, and giving a special lien on the different portions of the land claimed by said sets of defendants to secure the payment' of said sums. Prom this 'judgment an appeal was taken to this court.

I. The first point made by appellants grows out of the claim in the answer óf George E. Reynolds that there was a'misjoinder of parties and causes of action. None of the other defendants made any defense of this kind. The answer of George E. Reynolds sets up a general denial and defense of misjoinder of persons and causes of action, and also a counterclaim or cross-petition, wherein he asserted title to the particular portion of the land claimed by him, and denied all right and title alleged thereto by plaintiff, and prayed the court to decree that the fee estate therein was vested in him and to establish, confirm and quiet such title as against the plaintiff, and for general relief.

This position was contradictory to the defense seeking to dismiss plaintiff’s suit for misjoinder of persons and canses of action, and, therefore, was a waiver of such defense on the part of defendant.

All consistent defenses may he made in the same answer whether involving matters' of abatement or in bar of plaintiff’s suit.' The test of consistency is whether the proof of one defense necessarily disproves another. Unless this happens, the defenses, however diverse, are not inconsistent. In the case at bar it would be impossible for the defendant George E. Reynolds to obtain the affirmative relief prayed for in his answer without abandoning the defense also set up in his answer praying the dismissal of plaintiff’s suit for a misjoinder of parties and causes of action. Because of this repugnancy between the positions thus taken by him, defendant has no right to ask this court to review the action of the trial court in refusing to sustain the objection of misjoinder also contained in his answer. That defense under the facts in this record would have been full and complete and would have entitled defendant Reynolds to a dismissal of the suit against him except for the further contradictory defense and prayer for relief contained in his answer against the plaintiff. The objection of misjoinder was not open to demurrer since it did not appéar on the face of the petition. It was, therefore, proper to be made by answer, and would doubtless have prevailed except for the further pleading in the answer which was destructive of the defense of misjoinder.

II. Appellants also assign for error the admission, over their objections, of .the oral testimony of witness Groom as to the contents of a book which was .one of a set of abstract books owned by him. Evidently, plaintiff;'by this testimony, intended to show that the abstract or certificate of title by the Taney County Abstract Company, which it had erroneously introduced in evidence, contained the same chain of title which was entered in the set of abstract books referred to by the act of the Legislature (Laws 1905, p. 148), making copies of such books, properly verified, prima facie evidence of the matters therein contained in all courts and places in this State. This act was passed to facilitate proofs of title in real estate transactions which appeared on the public records of Taney county before their destruction by fire, on the 19th of December, 1885. It was designed in a measure to make this particular set of abstract books a quasi substitute for the destroyed records from which they had been presumably copied.

The object of this statute is beneficial, and should not be thwarted by a narrow construction cutting off its usefulness. We think, therefore, that if the custodian of this set of abstract books mentioned in the statute had refused to furnish, under affidavit, true and correct copies of the matters and entries contained in said abstract books in his possession, then the plaintiff might have required him to produce said books under a subpoena duces tecum, or otherwise, and might have offered the books themselves in' evidence and proved by the books any and all matters and entries contained in them affecting the title of the land in suit; and that the showing thus made would have had all the probative force of copies made from said books by the custodian and attested by his affidavit. Plaintiff did not take this course. But, in the first instance, presented a mere certificate or abstract of title made by a title examiner. Clearly, this document was incompetent of itself to show any chain of title, and the objection of defendants to its admission in evidence should have been sustained. It was not a certified copy of the public records nor was it a copy of the set of abstract books, made a quasi substitute for the public records which had been destroyed by fire, attested by the custodian thereof as prescribed by the terms of the Act of March 23, 1905.

The series of questions put to witness Groom relating to the contents of the abstract books were an attempt to prove the contents of existing writings, not by the writings themselves, but by oral testimony. This could not be done consistently with established rules governing the admission of evidence.

The apt and specific objections interposed by defendants served to call the attention of the court to the incompetency of this testimony and its inadmissibility. These objections should have been sustained, and the plaintiff, should have been required to offer in evidence the books themselves or certified copies of their contents, attested in the manner prescribed by statute.

As this error of the trial court necessitates a reversal of the judgment in this cause, it is unnecessary to discuss the error assigned as to its refusal of the application for a change of venue. This cause is reversed and remanded for a new trial in conformity herewith.

Boy, G., concurs.

PER CURIAM. — The foregoing report of the commissioners is hereby adopted as the opinion of the court.


text:
    W. W. BROWN CONSTRUCTION COMPANY, Plaintiff, Appellant, v. MacARTHUR BROTHERS COMPANY, Defendant, Appellant.
    Division Two,
    July 1, 1911.
    1. DEFAULT: After Personal Service: Admission of Traversable Allegations. A defendant, by making default after personal service upon him, admits every traversable allegation of plaintiffs petition, and is precluded thereafter from controverting any cause of action sufficiently stated in said petition.
    2. SUIT ON CONTRACT: Default by Defendant: Evidence Admissible: Damages. Plaintiffs petition alleged that defendant employed plaintiff to do excavating, that plaintiff excavated a quantity of “cemented gravel,” the reasonable value of which was seventy-five cents a cubic yard, and prayed judgment accordingly. After being personally served, the defendant made default. The court appointed a referee “to examine into and assess the damages.” Held, that testimony as to the amount and the reasonable value of “cemented gravel” excavated, should alone have been admitted by the referee.
    3. -: -: -: Specifications in Another Contract. In a suit on a contract by which defendant agreed to pay the plaintiff the reasonable value of excavating "cemented gravel,” evidence cannot be admitted (defendant having filed no answer) to show that specifications in another contract concerning the same subject-matter governed the contract in suit. In the first place, such defense, to be available, should have been pleaded, and in the second place, there is no proof in the record that such specifications, if any, were ever submitted to-plaintiff.
    4. PLEADING: Waiver and Estoppel: Must Be Pleaded to Avail as Defenses. Estoppel, and waiver as well except in actions on contracts of insurance, is always a matter of affirmative defense, and must be pleaded in order to be available, unless shown or made to appear in plaintiff’s case.
    5. -: Default by Defendant: Defects of Statement in Petition Cured Thereby. After default by defendant personally served, plaintiff’s petition is impervious to attack for any defect in statement (surplusage, etc.) except the failure to state a cause of action.
    6. -: Open Account: Statement Incorporated in Petition. Plaintiff’s petition alleged that, through defendant’s failure to live up to an agreement, plaintiff was put to a stated expense for “men and teams” assembled and held ready to do excavating, and an itemized statement was incorporated in said petition, showing part of this expense to be for delaying engines and graders. Held, that the items set out in the petition, being for unliquidated damages, do not constitute an open account within the meaning of Sec. 1799,- R. S. 1909, and said itemized statement does not enlarge the scope of the allegation in the petition into which it is incorporated.
    Appeal from St. Louis City Circuit Court. — Hon. Robert M. Foster, Judge.
    Appirmed.

      Kinealy & Kinealy for plaintiff, appellant.
    (1) The judgment by default is conclusive that tbe contracts set forth in the first and third counts of plaintiff’s petition were made and broken as therein set forth. Froust v. Bruton, 15 Mo. 620; Munford v. Wilson, 19 Mo. 672; Price v. Page, 24 Mo. 67; Lombard v. Clark, 33 Mo. 308; Phillips v. Bachelder, 47 Mo. App. 54; Robinson v. Lawson, 26 Mo. 69; Foster v. Smith, 10 Wend. 377; Lannean v. Ervin, 12 Eich. (L.) 31; G-annard v. Dollar, 4 Jones (L.) 175; Ottawa v. Foster, 20 111. 296. (2) The agreement between plaintiff and defendant, made after plaintiff refused to excavate the cemented gravel at the price of earth, that plaintiff should be paid the reasonable value of the excavation of cemented gravel, having been acted on by plaintiff, was binding on all, and even had there been other prior arrangements as to this matter, as defendant contends, they became abrogated by the new contract. Keating v. Korfhage, 88 Mo. 532. (3) Defendant'having failed to file any pleading to plaintiff’s petition and a judgment by default having been rendered it cannot be heard to claim a waiver of any obligation arising out of the contracts set forth in plaintiff’s statement of the first and third counts. Such waiver must be pleaded. Lanitz v. King, 93 Mo. 513; Erlich v. Ins. Co., 103 Mo. 231; Bank v. Hatch, 78 Mo. 13; McCullough v. Ins. Co., 113 Mo. 606. (4) The word “teams” includes “wagons.” Hotchkiss v. Hoy, 41 Conn. 568; Eowell v. Crothers, 75-Conn. 126. (5) A party is not bound by a date stated in a petition and particularly when it is stated as “on or about” and is not of the essence of the transaction. Bersch v. Dittrick, 19 Mo. 129; Martin v. Miller, 3 Mo. 135; State v. Martin, 8 Mo. 102; Burnham' v. Jacobs, 66 Mo. App. 628; Meeker v. Cutter, 51 Mo. App. 344; 22 Ency. PI. & Pr. 611. Besides this, no objection was made to the proof of the contract alleged in first count, because of its date, when it was offered before the referee. (6) Plaintiff is not bound by any specifications of work save those described and called for in his working contract. Donnelly v. Adams, 115 Cal. 129; Williamette Co. v. Los Angeles Co., 94 Cal. 229; Sexton v. Chicago, 107 111. 323; Granite Co. v. Dolan, 138 N. Y. 607. (7) The contract set forth in the first count was binding irrespective of the admission by the default. Keating v. Korfhage, 88 Mo. 532. (8) The cause was referred to the referee merely to assess the damages on default, and he had no authority to go outside of the power conferred on him by the order appointing him. Bank v. McMullen, 85 Mo. App. 142. (9) In this case the referee in effect dismissed the third cause of action as to the items for delays to the engine and grader. This was beyond his power. Co-burn v. Tucker, 21 Mo. 219. (10) The referee misconceived the law of this State on the question of pleading, because the account embodied in the petition is as much a part of the statement of the cause of action as any other part of it, and although items may not be alluded to in the other written part of the statement, yet if set out in the account, proof must be heard as to them to the same effect as if they were also stated in the other written part. Iiassett v. Bust, 64 Mo. 329; Combs Co. v. Block, 130 Mo. 679; Connor v. Pieman, 44 Mo. App. 347; 1 Ency. of Forms, p. 312; Meyer v. Chambers, 68 Mo. 627.

      Collins £ Chappell for defendant, appellant.
    (1) The status of a defendant having suffered an interlocutory judgment by default, nil dicii, is that plaintiff is entitled to nominal damages, but in order to recover actual damages, such damages must be established by competent evidence, and upon the hearing defendant is entitled to cross-examine the plaintiff’s witnesses and to introduce extrinsic evidence tending to contradict plaintiff’s evidence or mitigate the amount of damages: B. S. 1899, secs. 769, 774, 775; McCutchin v. Batterton, 1 Mo. 342; Barclay v. Pickles, 38 Mo. 143; 10 Ency. PI. and Pr. 1154, 1156. (2) The contract sued on in the first count of plaintiff’s petition provides the method of classifying and determining the material excavated. (3) The plaintiff having accepted payment in full for all the material by it excavated under the classification of earth and at the contract price for earth, is estopped to claim that said material was other than earth. Mc-Gregor v. Ware, 188 Mo. 611. (4) The plaintiff having agreed to accept an extra allowance for the cost of explosives and labor for blasting, is now estopped to claim for material npon any other theory or basis. (5) Plaintiff having, in the first count of its petition, declared upon a written contract, dated May 30, 1902, it was error to permit plaintiff to recover upon a subsequent oral contract dated in September, 1902. Harrington v. Com. Co., 107 Mo. App. 423; McGregor v. Ware, 188 Mo. 611; Lanitz v. King, 93 Mo. 513; Smith v. Ham, 51 Mo. App. 433; Bunce v. Beck, 43 Mo. 266. (6) From the pleadings upon evidence in this ease it appears that plaintiff waived any right of action which may have accrued to it under the third count of its petition. Bishop on Contracts, secs. 792 and 795; Jordan v. Dose, 24 Ga. 478; McCord v. Railroad, 3 La. Ann. 285; Lagare v. Fowler, 4 La. Ann. 243; Fox v. Plarding, 7 Cush. (Mass.) 511; Geiger v. Railroad, 41 Md. 4. (7) The judgment in favor of plaintiff upon the third count of the petition is excessive.
   BOND, C.

The plaintiff and defendant are each corporations engaged in construction work. The defendant had a contract with the Illinois Central Railroad to do a certain construction work in Kentucky. It thereafter entered into a sub-contract with the plaintiff corporation, employing it to do a portion of the work, described in the contract, for the prices therein named: to-wit, ‘ ‘ earth excavating, 19y2 cents per cubic yard; clearing, $25 per acre; grubbing, $8 per station.” This contract between the parties to this suit was in the form of a letter addressed by plaintiff to defendant upon May 30, 1902, and an acceptance endorsed thereon by defendant. It contained a provision, to-wit, “All in accordance with the specifications and to the satisfaction of the chief engineer of construction of the Illinois Central Railroad Company.” After some delay in obtaining “access and right .of way” to and over the grounds where the work was to be done, plaintiff engaged in the performance of the work. During the progress of the work of excavating, the plaintiff reached a substance termed ‘ cemented gravel,” more difficult and expensive in excavation than earth. Plaintiff called defendant’s attention to the quality of this substance, and proposed to stop work until an agreement was reached as to payment for excavating the same.

The evidence tends to show that there was an agreement reached, that plaintiff should go forward with the work and should be allowed the reasonable value of excavating the “cemented gravel.” With this .understanding the work was performed, and plaintiff received payment therefor according to the terms of the contract between the parties, except as to the work done of excavating the ‘ ‘ cemented gravel, ’ ’ which was paid for at the price of excavating earth. Plaintiff demanded in addition a further sum equal to the reasonable value of performing that work. Plaintiff further demanded that it should be allowed the cost and expense of “assembling teams and wagons” for the doing of the work in question and being compelled to hold them in readiness during the delay occasioned by the defendant’s failure to procure for. plaintiff “access and right of way” to the property within a reasonable time after defendant had required plaintiff to be ready with “men and teams” and other appliances for doing the work.

Upon the failure of the defendant to comply with these demands, the present suit was brought in a petition containing five counts. Three of the counts were dismissed or nonsuits taken therein on the trial. Copy of the petition and summons was personally served upon the defendant to the April term, 1904, of the circuit court of the city of St. Louis. The defendant made default, and judgment was rendered accordingly on the first and third counts of the petition. The first count of the petition alleged, in substance, that defendant on or about the 30th of May, 1902, employed plaintiff to do the excavating in and about Capp’s Cut, on the Illinois Railroad; that plaintiff, excavated 9166 cubic yards of a material known as “cemented gravel,” the reasonable value of which was seventy-five cents per cubic yard, and prayed judgment accordingly. The third count alleged cause of action against defendant for failure to procure the right of way and access to the grounds on which said work was to be done at the time indicated by defendant, whereby plaintiff was put to the cost and expense of $2261. The items, dates and particulars of all of which were incorporated in said third count, as follows:

“June, 1902.
Twenty-five teams ... .10 $ 4.00 per day each... .$1000.00
Supt................10 3.50 ................ 35.00
Timekeeper .........10 2.00 ................ 20.00
1 Traction engine ......15 10.00 ................ 150.00
1 Grader .............15 5.00 ...'....... ..... 75.00
12 Wagons ............15 .25 per day each.... 45.00
12 Wagons ............15 .25 per day each.... 45.00
July, 1902.
1 Traction engine ......26 $10.00 ................$ 260.00
1 Grader .............26 5.00 ................ 130.00
12 Wagons ............26 .25 ................ 78.00
Aug., 1902.
1 Traction engine ......26 $10.00 ................$ 260.00
1 Grader .............26 5.00 ................ 130.00
12 Wagons ............26 .25 ................ 78.00
Total ............. .......................$2261.00
“Wherefore plaintiff prays judgment for said sum of $2261 and interest thereon.”

The court appointed a referee “to examine into and assess the damages in this case.” After taking proof, the referee reported, recommending judgment in favor of plaintiff on the first count for $5087.13, and on the third count for $1156 — total $6243.13 with interest from March 19, 1904. In reaching his conclusions on the second count, the referee excluded from view the cost and expense “for delaying the graders and traction engine, amounting to the sum of $1005,” hut allowed all the remaining items of the account set forth in the third count of plaintiff’s petition.

On hearing of the evidence before the referee, it was not shown that any copy of the specifications of the contract between defendant and the railroad was exhibited to plaintiff at the time of the contract made between plaintiff and defendant, or at any othér time “before plaintiff encountered the ‘cemented gravel’ and refused to do further work unless it was to be paid therefor.” There was evidence tending to show the defendant agreed to pay plaintiff a reasonable value for doing the work of excavating the “cemented gravel.”

Exceptions to the referee’s report were filed by both parties and overruled. Motions for new trial filed by both parties were also overruled, and both perfected their appeals to this court — the plaintiff from so much of the finding of the referee as excluded any allowance for the delay of the graders and traction engine; and the defendant from the judgment against it on the first count.

I. The two appeals taken in this case present for review the question of the correctness of the affirmance of the referee’s report on the first and third counts of plaintiff’s petition.

Taking these in order. The default made by the defendant, after personal service, in this action was an admission on its part ©f every traversable allegation contained in the first count of plaintiff’s petition, and precluded the defendant from controverting thereafter any sufficiently stated cause of action contained in said connt. [Barclay v. Picker, 38 Mo. 143; Lombard v. Clark, 33 Mo. l. c. 309; Price v. Page, 24 Mo. l. c. 67.]

In considering this count of the petition, the referee should have confined the testimony of the defaulting defendant to evidence tending only to mitigate or diminish the damages, and should have excluded all testimony or evidence tending in any manner to controvert the cause of action stated in this count of the petition, for that was admitted and confessed by the default of the defendant. It was sufficient to entitle the plaintiff to a recovery, that the allegations in this count set forth a good cause of action or a legal right to a recovery. In applying this rule to the conduct of the case before him, the referee should not have required plaintiff to offer evidence that it had a contract with defendant whereunder it was entitled to the reasonable value of excavating “cemented gravel, ’ ’ for the existence of such contract was expressly alleged as the ground of plaintiff’s right to recover on the first count of the petition, and was conclusively established against defendant after the default. The referee should have admitted only testimony tending to show what was the reasonable value and the amount of “cemented gravel” excavated by plaintiff; and should have rejected the evidence offered by defendant tending to controvert plaintiff’s right to recover by showing that plaintiff did not have a contract with defendant' for payment for the work of excavating “cemented gravel.”

By the wide range of testimony admitted by the referee, defendant sought to prove that plaintiff was debarred from a recovery under the first count of its petition, because said count declared upon a written contract, under the terms of which contract plaintiff had bound itself to accept a classification of “cemented gravel” as earth, and, hence, was only entitled to be paid for excavating “cemented gravel” at the price fixed for excavating earth.

In the first place, if the facts warranted such defónse, it was indispensable that they should have been .affirmatively pleaded by defendant. It could not be set up after a default. In the second place, it is nowhere shown in the evidence that any such classification was made and shown to the plaintiff at the time of the written contract of May 30, 1902, nor after-wards. Again, the contract of May 30, 1902, does not, either by terms or legal, intendment, provide for any classification of the specific substance or work.mentioned in said contract: to-wit, “Earth excavation, clearing, and grubbing.” It simply provides that these things should be done “in accordance with the specifications and to the satisfaction of the chief engineer of the Illinois Central Railroad;” and there is no proof in the record that any specifications of “cemented gravel” as earth by said.chief engineer were ever submitted to plaintiff at any time. Hence, this point is ruled against defendant.

II. Defendant also contends that the proof introduced before the referee afforded the basis for the application of the doctrine of waiver and estoppel as against any recovery by the plaintiff on this count of its petition. The answer to this is, that estoppel, unless it is shown or made to appear in plaintiff’s case, is always a matter of affirmative defense and must- be pleaded in order to be available; and that the same rule applies as to waiver in all cases except in actions on contracts of insurance. [McCullough v. Phoenix Ins. Co., 113 Mo. l. c. 616.]

III. Appellant (defendant) further contends that the first count of plaintiff’s petition was based upon the written contract of May 30, 1902, wherefore it was error to permit plaintiff to recover on the subsequent oral contract, dated in August, 1902. This contention is based upon a misconception of the cause of action stated in this count. The cause of action stated in this count is a quantum meruit for the reasonable value of work and labor performed in excavating the “cemented gravel.” The reference to the date of May 30, 1902, as being on or about the date of the agreement sued on, was neither a substantive allegation nor was it intended to make the contract of that date, afterwards introduced in evidence, the basis of the suit. This is necessarily so, for there is no allegation in the petition asking for a recovery for either of the three things exclusively mentioned in the contract. On the contrary, the cause of action is based upon an alleged agreement for excavating a material or substance wholly different and distinct from those mentioned in said written contract. It is impossible, therefore, for the count to have been one for the violation of the written contract. The allegations of said count could have been sufficiently stated without referring to the contract of May 30, 1902, in any way, but such reference was at most surplusage; and the fact that the allegation did not refer to anything covered by the contract in question, clearly shows that it could not be based thereon. This count did contain the- elements of a good cause of action for the violation of an oral contract to .-pay the reasonable value of excavating “cemented gravel,” as follows: “That plaintiff excavated 9166 cubic yards of material, known as “cemented gravel,” the reasonable value of which was seventy-five cents per cubic yard, amounting to $6874.50, no part of which has been paid and judgment is asked therefor.” The fact that it also contained other references not made the basis of the demand for judgment, does not destroy its legal sufficiency. It is the settled law of pleading, that the defective statement of a cause of action is a radically different thing from the statement of a defective cause of action. The former is cured by a verdict or a default; the latter is incurable at any stage of tbe canse and may be taken advantage of for tbe first time on appeal to a court of last resort. This count of tbe petition sufficiently alleges tbe oral agreement, and tbe breach thereof, upon which tbe finding was made by tbe referee. It is impervious to attack, after default by defendant, for want of definiteness, surplusage, or any other defect in statement, except tbe failure to state any cause of action.

We, therefore, bold that tbe finding of the¡ referee on tbe first count of tbe petition was properly affirmed by tbe trial court.

IV. Tbe only theory on which tbe learned referee excluded any allowance to plaintiff for tbe delay of its graders and traction engine was tbe assumption by him that tbe inclusion of a charge for tbe specific loss thus suffered in tbe itemized account, which itemized account was set forth in tbe third count of tbe petition, was not sufficient to make, those items a part of tbe cause of action alleged in said third count of tbe petition.

We cannot concur in that view. Tbe code of civil procedure provides: “And in actions instituted upon an open account or an account stated where tbe items are set forth in or annexed to tbe petition, if tbe defendant has been personally served by tbe delivery to him of a copy of said account. . . .if tbe defendant makes default, be shall be considered as admitting tbe account to be due as set forth in or annexed to tbe petition, and final judgment may be rendered against him for tbe amount thereof at tbe time of entering tbe default.” [R. S. 1909, sec. 1799.] -

Tbe only prerequisite to a final judgment in a case coming within tbe terms of tbis statute is, that tbe defendant shall have been served personally with a copy of tbe petition and of tbe included or appended itemized account. That was done in tbis case, and tbe court, without any reference, might have made a finding for the aggregate items contained in this count of the petition when defendant made default. [Clark v. Evans, 64 Mo. 258.]

This statute is predicated upon the idea that an itemized account inserted bodily in a petition or annexed thereto, is just as much a part of the petition as any allegations preceding or following the account. It expressly provides for the rendition of a final judgment after a default as in this case.

We, therefore, hold that the referee and the circuit judge erred in not making a finding of the amount of the items of expense incurred by plaintiff for the delay of its graders and traction engine, since these were contained in the itemized account embodied in the petition. The finding herein as. to the first count of the petition is affirmed, and the finding as to the second count of the petition is reversed, and the cause remanded with directions to the trial court to make a finding on the second count of the petition in favor of plaintiff and against defendant for the aggregate of the itemized account set forth therein, and to render judgment in plaintiff’s favor for the amount of the findings on both the first and third counts of the petition.

Boy, C., concurs.

PER CURIAM. — The motion for rehearing is overruled. The opinion, however, will be modified in. the following particular:

Upon reconsideration, we are satisfied that the ruling of the referee disallowing any recovery on the third count for the delay on account of the graders and engines was correct. We are of the opinion that the items set out in the petition, being for unliquidated damages, do not constitute an open account within the. meaning of section 1799, Revised Statutes 1909, and consequently this itemized statement does not enlarge the scope of the allegations in the petition. It is ' therefore ordered that the judgment of the circuit court be affirmed.