Suit by Karl Maass, plaintiff, against Edwin A. Patterson and Jennie Patterson, defendants, to establish and foreclose a mechanic's lien. From a judgment of dismissal plaintiff appeals.
Amended Complaint. Three causes of action are united in the amended complaint.
The first cause of action is on an alleged express contract and seeks foreclosure of a mechanic's lien filed September 24, 1941 and to recover $116.50 and interest, costs and attorney's fee.
The second cause of action is based on an implied contract and seeks the same relief prayed for in the first cause of action.
The third cause of action is to recover $46, together with interest and attorney's fee, on an implied contract and seeks foreclosure of the same mechanic's lien pleaded in the first and second causes of action.
The second cause of action alleges: I. That plaintiff is a house painter and interior decorator; II. that at the special instance and request of defendants, Edwin A. Patterson and Jennie Patterson and upon their promise to pay the reasonable value thereof, plaintiff furnished materials and performed work of the reasonable value of $166.50 in cleaning and decorating the interior of defendants' dwelling; III. that the dwelling is located upon three described lots in the city of Harlowton, Montana; IV. that defendants were and are the owners of the described lands and premises; V. that the work was performed and the materials were furnished between the 13th and the 28th of June 1941, on which latter day the work was completed; VI. that on September 24, 1941, plaintiff filed for record his claim for a lien; VII. that plaintiff paid therefore a filing fee of fifty cents; VIII. that no part of the reasonable value of said labor and materials other than $50 has been paid and that there is due and owing therefor $116.50 and interest from June 28, 1941; IX. that to institute and prosecute this action and to collect the amount due, plaintiff employed Emmet O'Sullivan, an attorney at law, and has *Page 396 become obligated for a reasonable attorney's fee in that behalf of $100.
The plaintiff may unite in the same complaint several causes[1] of action belonging to only one of the various classes enumerated in section 9130, R.C.M. 1935, but such causes so united "must be separately stated and numbered."
In the amended complaint plaintiff designated his first cause of action as "First Count," the second cause of action as "Second Count" and third cause of action as "a further and second cause of action against said defendants."
Mr. Pomeroy in his work on Code Remedies, 5th Ed., sec. 336 at page 516 says: "All of the codes require that the different causes of action should be separately stated. In other words, each must be set forth in a separate and distinct division of the complaint or petition, in such a manner that each of these divisions might, if taken alone, be the substance of an independent action. In fact, the whole proceeding is the combining of several actions into one. At the common law, these separate divisions of the declaration were termed `counts;' and that word is still used by text writers and judges, although, with one or two exceptions, it is not authorized by the codes; and it tends to produce confusion and misapprehension, since the common law `count' was substantially a very different thing from the `cause of action' of the new procedure. In one or two States, the term `paragraph' is used to designate these primary divisions. The difficulty in the use of this term is that it is now very generally used in England, and in most of the States where the reformed system prevails, to designate the short subdivisions, or allegations, of facts into which each cause of action is separated, according to a mode of pleading which has become very common. The term `cause of action' is perhaps as proper as any which can be used for the purpose. That such a separation should be made, and that each distinct cause of action should be stated in a single and independent division, so that the defendant may answer or demur to it without any confusion with others, is plainly indispensable to an orderly system of *Page 397 pleading, and is expressly required by all the codes; and in some of the States the courts have strictly enforced the requirement, and have thereby done much to prevent the formal presentations of the issues to be tried from falling into that confused and bungling condition which exists to so great an extent in certain of the States." See also First Nat. Bank v. D.S.B. Johnson Land Mortg. Co., 17 S.D. 522, 97 N.W. 748; Bates v. Baumhauer,239 Ala. 255, 194 So. 520.
Answer. Defendants filed a joint answer and counterclaim. As to the first cause of action defendants: Admit that about June 5, 1941 they entered into an agreement with plaintiff whereby he agreed to furnish the material and labor (a) for kalsomining the ceilings in the dining room, living room and hall of defendants' dwelling, (b) for painting the walls of said rooms and hall with three coats of paint, and (c) for applying a tiffany finish thereto; deny that such agreement was for washing the woodwork or for applying one coat of shellac and one coat of varnish thereon; allege that the woodwork was to be washed, sanded and that one coat of gloss varnish and one coat of flat varnish was to be applied thereto and that the work was to be done in a satisfactory workmanlike manner; admit that plaintiff entered upon the performance of his contract on or about June 13, 1941; admit the payment of $50 to plaintiff; admit that defendants' dwelling is located upon the lots described; admit that defendants were and are the owners of the described lands and premises; admit that the work was performed between the 13th and 28th of June, 1941 on which last named day said work and labor was completed and "deny all the allegations contained" in the first cause of action "not specifically admitted or denied in the answer."
For their separate answers to plaintiff's second and third causes of action "the defendants deny each and every material allegation therein contained."
Counterclaim. For a further defense and counterclaim defendants allege: That on June 5, 1941 they entered into an agreement with plaintiff whereby the latter agreed to furnish material *Page 398 and labor in decorating the interior of defendants' dwelling in a satisfactory and workmanlike manner at an agreed price of $166.50; that on June 13, 1941 plaintiff entered upon the performance of his contract and partially performed same, but that he failed to perform the balance thereof and that he performed a part thereof in such a negligent and unworkmanlike manner that the woodwork is ruined to defendants' damage in the sum of $200 plus $100 as a reasonable fee for the services of defendants' attorney in defending this action.
Reply. Plaintiff did not question the sufficiency of the allegations of the answer by either motion or demurrer, but filed a reply denying each and every allegation of the affirmative defenses and of the counterclaim.
On such pleadings the parties deemed issue joined. Being ready for trial the cause was placed on the trial calendar. At the time set for trial the plaintiff was not present in court but was there represented by his counsel of record, Emmet O'Sullivan, Esq., while the defendants were present in person and represented by their counsel of record, Edwin A. Cavan, Esq.
Thereupon the following occurred:
"The Court: In Cause No. 2281, Maass v. Patterson, is the plaintiff ready for trial?
"Mr. O'Sullivan: Yes, Your Honor.
"The Court: Is the defendant ready?
"Mr. Cavan: Yes, Your Honor.
"The Court: It appearing to the Court that the trial of cause No. 2281, Maass v. Patterson, has come on for trial and the plaintiff and the defendants having answered that they are ready for trial, and it appearing to the Court that said cause is an equity cause and that there is a jury in attendance upon the court at the present time, it is ordered that a jury be called to try the issues in the case in an advisory capacity to the Court. Call a jury to try the cause." Thereupon a jury of twelve qualified men and women was duly empaneled and sworn to try the cause, and counsel for plaintiff made his opening statement to the court and jury. *Page 399
Following the opening statement the record shows these proceedings:
"Mr. O'Sullivan: Before proceeding further in this matter, Your Honor, the plaintiff at this time wants the record to show that he elects to stand and proceed on the second count set forth in the amended complaint, and to waive the right to stand on the first count in said amended complaint.
"The Court: All right; call your first witness.
"Mr. O'Sullivan: Your Honor, I desire to be sworn.
"The Court: Any objection to the argument of counsel after he testifies?
"Mr. Cavan: No, no objection."
Thereupon plaintiff's counsel was duly sworn and, on interrogation by himself, testified as to the reasonable value of the services performed by him as an attorney at law in instituting and prosecuting the case on plaintiff's behalf.
At the conclusion of counsel's testimony the record shows the following proceedings had and taken:
"Mr. O'Sullivan: That is all.
"Mr. Cavan: No cross examination.
"The Court: Call your next witness.
"Mr. O'Sullivan: We rest, Your Honor.
"Mr. Cavan: We rest, Your Honor.
"The Court: Let the record show the plaintiff rests, and the defendant rests. That's a lawsuit, huh?
"Mr. Cavan: May it please the Court, the plaintiff having rested in open court and no evidence with reference to the merits of the action, proof of none of the allegations of their complaint having been presented, I move at this time that the action as against the defendants be dismissed.
"Mr. O'Sullivan: I respectfully submit there isn't any issue in the case.
"The Court: Ladies and gentlemen of the jury, you will remember the admonition I have given you several times heretofore, and we will recess for fifteen minutes. *Page 400
"(After a short recess.) The Court: Are you satisfied, gentlemen, that all parties are present?
"Mr. O'Sullivan: Yes, Your Honor.
"Mr. Cavan: Yes, we are.
"The Court: Let the record show that the plaintiff and the defendant in the above action having rested, that the matter is taken under advisement by the Court, and that the plaintiff is given thirty (30) days from this date in which to prepare, serve and file a brief; that the defendant thereafter is given thirty (30) days in which to prepare, file and serve a brief, an answering brief, and the plaintiff is given ten (10) days for a reply brief. Now, ladies and gentlemen of the jury, this case is what the lawyers call an equity case, in which a jury is called merely in an advisory capacity. A question of law having been raised the Court does not deem there is an issue to be submitted to you, and you will be discharged. There is nothing further to consider, and I thank you."
The jury was discharged without objection whereupon plaintiff's counsel urged that while the denial in defendants' answer to plaintiff's first cause of action was proper and sufficiently joined issue on that cause of action yet, by waiving plaintiff's right to stand on the first cause of action and by electing "to stand and proceed" on his second cause of action to which defendants answered that they "deny each and everymaterial allegation therein contained," that no issue was raised by the latter denial because of the incorporation therein of the word "material."
Had plaintiff challenged the denial by motion or demurrer before filing his reply or going to trial, all defendants would have been required to do in order to meet plaintiff's objection would be to simply strike the word "material" from the denial, as plaintiff well knew. Without making timely objection or apprising defendants' counsel and the court that he intended to challenge the pleading, plaintiff treated the cause as though issue had been joined, allowed the case to be placed on the trial *Page 401 calendar, and then when the case was called for trial he announced that he was ready.
On the above highly technical contention disclosed for the first time in the midst of the trial plaintiff's counsel rested his case and declined to present to the court and jury any evidence in support of the allegations of the cause of action on which he had elected to stand other than the testimony of plaintiff's counsel, which testimony was directed solely to the reasonable value of the attorney's fees claimed. While plaintiff was afforded every opportunity to introduce any and all evidence that he had he refused to proceed. Thus did he have his day in court and thus did he spend it.
With plaintiff's evidence closed and after plaintiff had rested, the defendants likewise rested and immediately moved for a dismissal because of the failure of plaintiff's proof to establish a cause of action.
The trial court granted defendants' motion and made an order dismissing the case, and plaintiff has appealed.
The order of dismissal, inter alia, recites:
"An answer in the above form is insufficient for the reason that it is uncertain. No motion or demurrer was filed by plaintiff attacking the answer. No default was entered against defendants or motion for judgment on the pleadings made. The parties proceeded to trial as though the pleadings were sufficient to raise some issues to be tried. Under the foregoing it is the opinion of the Court that the plaintiff having proceeded to trial without raising the question until both plaintiff and defendants had rested, that the plaintiff waived the defect in defendants' answer. To hold that defendants, under the state of the pleadings and the circumstances, must be deemed to have admitted the truth of the averments in the complaint would be palpably unjust.
"It is the view of the Court that the answer to count two is not so defective as to amount to no answer at all; that the answer should have been attacked in one of the ways mentioned, and if not, the defect was waived. The same could have been *Page 402 amended upon its being called to the Court's attention by striking therefrom the word `material' without prejudicing plaintiff's action.
"An examination of the pleadings discloses that count one and count two of plaintiff's amended complaint are to all intents and purposes the same except that one is based upon contract and the other upon quantum meruit and that a sufficient denial was made as to count one.
"It is therefore ordered that the defendants' motion that plaintiff's action be dismissed, be, and the same is, hereby sustained and said action is accordingly dismissed."
Plaintiff's brief on this appeal states: "This court has held time and again that such denial is bad for uncertainty and raises no issue and admits the allegations of the pleading at which it is directed." As authority for the statement plaintiff cites and relies upon five decisions of this court, but a careful reading thereof discloses that none are applicable under such facts and circumstances as here obtain.
In Power v. Gum, 6 Mont. 5, 9 P. 575, plaintiff challenged the answer first by demurrer and next by motion for judgment on the pleadings. In the case before us the appellant directed no such attacks against the answer.
In Hamilton v. Huson, 21 Mont. 9, 53 P. 101, this court held that plaintiff not having challenged the answer in the lower court, could not question it on appeal.
In Missoula Mercantile Co. v. O'Donnell, 24 Mont. 65,60 P. 594, 991, this court on motion for rehearing merely followed the rule announced in Hamilton v. Huson, supra.
Iu Burke v. Inter-State Savings Loan Ass'n, 25 Mont. 315,64 P. 879, 87 Am. St. Rep. 416, the defendant challenged the plaintiff's reply which denied "each and every material allegation in said amended answer contained," urging that such reply was insufficient to raise an issue. In denying such contention the court said: "Such a denial is at least uncertain. But there was no objection in the court below to the form of the denial, and the cause was tried upon the assumption that the denial was sufficient. *Page 403 Conceding that a reply was necessary to frame an issue upon the new matter in the answer, the objection that might have been interposed to the denial therein contained was waived. [Missoula] Mercantile Co. v. O'Donnel, 24 Mont. [65], 75, 60 P. [594], 991. To hold that the plaintiff, under these circumstances, must be deemed to have admitted the truth of the averments in the answer, would be palpably unjust." (Emphasis supplied.)
In Nelson v. Stukey, 89 Mont. 277, 297, 300 P. 287, 292, 78 A.L.R. 483, this court approved the holding of Burke v. Inter-State Savings and Loan Ass'n, supra, and said: "Here it is known what the affirmative allegations of the answer are, and, hence, the denial in the reply before us is sufficiently definite and certain, particularly in the absence of a motion to make it more so. 49 C.J. 337, 338."
In the case at bar it was known what were the materialallegations of that portion of the amended complaint on which plaintiff had elected to stand and it is quite apparent as hereinbefore shown that such allegations are each and allmaterial in such an action, and that each and all were denied by the answer thereto, which answer followed the language of section 9137, R.C.M. 1935, and, in our view of the case, required that plaintiff make proof of such material allegations so pleaded by him.
Objections to the form of the denials are waived by going to[2] trial without first challenging the pleading by motion, demurrer or other timely and proper objection. See 49 C.J. 260, sec. 329, and cases in notes 14 and 15 which show that a large majority of the courts have sustained the same or similar denials. See also: Ellinghouse v. Ajax Livestock Co., 51 Mont. 275,152 P. 481, L.R.A. 1916D, 836; 49 C.J. 833-837, sec. 1234; 41 Am. Jur., "Pleading," sec. 396, page 565; Bancroft's Code Pleading, Vol. I, secs. 726, 729, 730 and 733.
When, upon stepping from the witness stand and being directed by the court to call his next witness, plaintiff's counsel announced, "We rest, your Honor." Thereby counsel voluntarily elected to submit plaintiff's case to the court for decision *Page 404 upon his testimony alone. Not only did plaintiff decline to produce any other witnesses or proof, but, in effect, he announced that he had no more evidence to offer.
"On the trial of an action, a party is said to `rest' when he[3, 4] has no more evidence to offer at the particular stage of the trial." Ballentine's Law Dictionary, page 1132. Webster's New International Dictionary defines "rest" as follows: "Law. In practice, to bring to an end voluntarily the introduction of evidence, the right to introduce fresh evidence, except in rebuttal, being thereupon lost." Thus did plaintiff voluntarily forego and lose the right to introduce any further evidence in support of his case except in rebuttal had defendants offered evidence, but this they declined to do.
In Molt v. Northern P. R. Co., 44 Mont. 471, 483,120 P. 809, 812, this court said: "It is claimed by respondent that appellant cannot rely upon the affirmative defenses of contributory negligence and assumption of risk, because they are not properly or sufficiently pleaded. * * * Appellant attempted to plead the two affirmative defenses, and in fact did plead the same, in general language, in accordance with the custom theretofore prevailing. The cause was tried on the theory that the defenses were sufficiently pleaded. No objection was made to the answer on that score in the court below. * * * The judgment and order are reversed, and, as the plaintiff has had one fairopportunity to prove a cause of action, and has failed, the district court is directed to dismiss the case." (Emphasis supplied.)
In State ex rel. La France Copper Co. v. District Court,40 Mont. 206, 208, 105 P. 721, 722, this court said: "We confess, also, that we assumed that the plaintiff had, as she should have done, introduced all of the evidence which she could procure, and that a failure to prove so vital a matter as the cause of her husband's death was due to inability to do so, rather than neglect to offer evidence which it was in her power to produce. Any other conclusion would be a reflection upon counsel, which we should be loath to indulge."
In Gregory v. Chicago, M. St. P.R. Co., 42 Mont. 551, 563, *Page 405 113 P. 1123, 1127, this court said: "The plaintiff had full opportunity to introduce all of his evidence in support of the cause of action alleged, but failed to make a cause to go to the jury. The evidence introduced by the defendant did not strengthen or supplement his proof in any way. Under these circumstances, the court will not direct a new trial, but make such an order as will finally dispose of the case. State ex rel. La France Copper Co. v. District Court, 40 Mont. 206, 105 P. 721. The judgment and order are reversed, with direction to the district court to enter judgment for the defendant."
In Le Vasseur v. Roullman et al., 93 Mont. 552, 559, 20 P.2d 250, 252, this court said: "In an equity case, such as this, there is, technically, no such thing as a non-suit. Streicher v. Murray, 36 Mont. 45, 92 P. 36. Plaintiff submitted his case for decision upon proof which was not sufficient to justify a judgment in his favor. Presumably he offered all the evidence he had. As the case then rested, it presented only a question of law. `Whether there is substantial evidence in support of plaintiffs' case is always a question of law for the court.' Flynn v. Poindexter Orr Livestock Co., 63 Mont. 337,207 P. 341, 348. It was incumbent on the court to decide the case, and there was but one way to decide it, and that was against plaintiff, or not at all. To hold that the court had reached an impasse would involve an absurdity. To the extent that the question is one of law it was decided upon the merits. It followed that plaintiff could take nothing."
In denying the motion for rehearing in Doyle v. Union Bank and Trust Co., 102 Mont. 563, 587, 590, 59 P.2d 1171, 1180, 108 A.L.R. 1047, this court said: "In the case before us the plaintiff was permitted to offer all of her proposed evidence. * * * Where the gist of the action was damages, as it is here, a failure to prove actual damages was a failure of proof."
In Harrington v. Montgomery Drug Co., 111 Mont. 564, 567,111 P.2d 808, 810, this court said: "We are entitled to presume, since plaintiff alleged an express warranty but failed to prove it, that she was unable to furnish such proof and in consequence *Page 406 the case will not be remanded for new trial, but the judgment will be reversed and the cause remanded, with directions that the action be dismissed."
In Bresee v. Smith, 73 Mont. 312, 320, 237 P. 492, 494, this court said: "The bill of exceptions incorporated in the record contains all of the evidence given at the trial. * * * The plaintiff had full opportunity to introduce all of his evidence in support of his claim against the appellants, but failed to produce sufficient to sustain a judgment against them. As said by the court in State ex rel. La France Copper Co. v. District Court, 40 Mont. 206, 105 P. 721: `No reason occurs to us why plaintiff, having had one fair opportunity to make out his cause of action, should be accorded the privilege, after the defects in his case have been pointed out by this court, of supplying the deficiency by evidence which presumptively was not in existence when the first trial was had.' We think a proper disposition of this case requires that the judgment against the appellants should be reversed, and the cause remanded to the district court, with direction to dismiss the complaint as to them, and it is so ordered."
The question presented by defendants' motion for dismissal was[5] one of law for the trial judge to decide, and "there was but one way to decide it, and that was against plaintiff * * *. To hold that the court had reached an impasse would involve an absurdity." Le Vasseur v. Roullman, supra. "A determination by a court that, upon all the facts in the case, the plaintiff is not, as a matter of law, entitled to recover, is just as binding and conclusive upon him as a determination by the court or jury that his witnesses are not entitled to credit, and that he ought not to recover for that reason." Dunseth v. Butte Electric R. Co.,41 Mont. 14, 25, 108 P. 567, 570, 21 Ann. Cas. 1258.
The judgment of dismissal was on the merits and such judgment is affirmed.
Associate Justices Freebourn and Bottomly concur. *Page 407