
    CHRISTIANE LAUMEIER et al., Respondents, v. CLIFFORD M. DOLPH et al., Appellants.
    St. Louis Court of Appeals,
    February 4, 1913.
    1. OPINION OF SPRINGFIELD COURT OF APPEALS ADOPTED. The opinion of the Springfield Court of Appeals in this case (145 Mo. App. 78) is adopted as the opinion of the court.
    2. PLEADING: Variance: Action on Joint Contract: Recovery on Several Contract. Where, in an action against two or more defendants, the petition counts on a joint contract, hut the evidence discloses a contract with only one of the 'defendants, a recovery may be had against such defendant.
    
      Appeal from St. Louis City Circuit Court. — lion. Charles Claflin Allen, Judge.
    Affirmed.
    
      Frank K. 'Ryan for appellants.
    
      Schnurmacher & Rassieur for respondents.
   REYNOLDS, P. J.

This case lias liad rather an eventful passage through the courts. It was tried in the circuit court of the city of St. Louis, resulting in a verdict for plaintiff in the sum of $6000 against the defendant Dolph. That defendant appealed to the Supreme Court, hut pending the submission of the cause to that court, the jurisdiction of thé Courts of Appeals was increased to $7500, whereupon the Supreme Court transferred it to this court. Following the provisions of the Act of June 12, 1909 (Laws 1909, p. 396, now Sec. 3939, R. S. 1909), the cause was transferred from this court to the Springfield Court of Appeals. There it was argued, the judgment of the circuit court affirmed hut the cause certified to the Supreme Court, the decision being in conflict with a decision of the Kansas City Court of Appeals in Meyers v. Missouri, Kansas & Texas Ry. Co., 120 Mo. App. 288, 96 S. W. 737. The Supreme Court, having held that the act providing for transfer of cases from o'ne Court of Appeals to another was unconstitutional, sent the case bach to our court, where it has been submitted and argued.

On consideration, we hold that the statement of facts and conclusions of law, as set out by Judge NixoN, speaking for the Springfield Court of Appeals, and reported under the title, Laumeier et al. v. Dolph, 145 Mo. App. 78, 130 S. W. 360, are correct.

Meyers v. Missouri, Kansas & Texas Ry. Co., supra, rests upon that part of the decision in Bagnell Timber Co. v. Missouri, Kansas & Texas R. R. Co., 180 Mo. 420, l. c. 463, 79 S. W. 1130, which holds that when the petition charges a joint contract, the plaintiff must recover upon the theory of a joint contract, or not at all; that unless the evidence tends to support a joint contract, plaintiff cannot recover, notwithstanding the evidence may disclose a contract with one of the defendants alone. In that ease, on a second appeal, the Supreme Court, 242 Mo. 11, l. c. 20 to 21, 145 S. W. 469, distinctly overruled that part of the former opinion. Following that, we accept and adopt the statement of facts and conclusions of law as set out by Judge Nixon, except as to the necessity of certification to the Supreme Court.

The judgment of the circuit court is affirmed.

Ndr-toni and Allen, JJ., concur.  