
    BURY vs. THE CITY OF ST. LOUIS.
    1. If a plaintiff proves the fact set forth in his declaration, the court is not authorised to in-» struct the jury that the plaintiff cannot recover, for the reason that his declaration sets out no cause of action, or sets it out defectively.
    2d. If a defendant neglects to demur to a defective declaration, he cannot avail himself of the objection at the trial, but will be put to his motion in arrest of judgment.
    APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.
    STATEMENT OF THE CASE.
    This was an action on the case brought by appellant, in the St. Louis court of common pleas against the appellee. The declaration contained three counts. The two first counts were substantially the same, differing mainly in this, that the first stated the case more fully in detail, the second more concisely.
    The case stated in these two counts was, in substance, that on the 5th of January, 1846, .one Stewart Mathews made a contract with the appellee, to erect and finish for her a hospital in the city of St. Louis, by a certain time agreed upon, for the price of ©6,650, payable in certificates of indebtedness, bearing interest at the rate of six per cent., 85 per cent, of which said price was to be paid in certificates as aforesaid, during the progress of the work, and the remaining fifteen per cent, after the completion of the work, after the settlement of all lawful claims, liens and demands against the building, on account of materials furnished and work done.
    And that afterwards, on the 20th day of said month of January, the appellant and said Mathews entered into a contract by which the appellant was to do all the painting of said hospital, and furnish all the materials necessary therefor by the date named in the contract between Mathews and the appellee, for the price and sum of ©1000 That the appellant Bury fully complied with his contract with Mathews, and Mathews with his contract with the city of St. Louis. And that upon the completion of the work stipulated for in the said two contracts, Mathews owed Bury, the appellant, under the contract between them, the sum of $350, and that the appellee, the city of St. Louis, then owed said Mathews, under the contract between them, the larger sum of ©581 62. And that the said sum of $350 due to Bury as aforesaid, was a demand against the said hospital built as aforesaid—of all which the appellee had due notice. And that by reason of the premises, it became the duty of the appellee not to pay to said Mathews.the aforesaid sum of ©581 62, until after the payment of said demand of Bury against said building on account of materials delivered and work done. But that the appellee, in violation of her said duty, whilst the appellant Bury held his demand against said building, and whilst said demand still remained duo and unpaid, the appellee wrongfully, and in fraud of the appellants rights, paid over to Mathews the said sum of 8581 62.
    The third count differs from the first two in this, that, for and upon the demand which he held as above stated against said hospital, he had a light to avail himself of a lien upon the building under the mechanics lien law, which it was the duty of the appellee to pay and satisfy, and in consideration that the appellant Bury would not avail himself of his said lien, the appellee promised to pay the amount of his said demand whenever she should be requested..
    The appellee in due time filed two pleas to the declaration of appellant. First, the general issue of not guilty ; and second, that she “ was in no wise liable to the appellant in manner and form as he had complained against her, ”
    To the second plea Bury’s counsel filed a demurrer, and took issue on the first.
    Afterwards, the appellee withdrew her second plea, and left the cause at issue for trial before the jury on the first plea.
    On this issue, at a subsequent term of the court, the parties, went to tiial before the jury.
    The plaintiff Bury proved the two contracts as stated in the declaration ; that the woik called for by Bury’s contract with Mathews was done in accordance with that contract, and that the hospital contracted for between Mathews and the city of St. Louis, was finished by Mathews according to the contract between him and the city of St. Louis, and was received by the latter in discharge of the contract. That afterwards, and on the 24th July, 1846. the appellant Bury presented to the city engineer, in his office, an order of that date lor ©350, drawn by Mathews in favor of Bury, and that at the time of the presentation of this order, there was due from the city of St. Louis to Mathews, a sum of money on account of the building of the city hospital, exceeding the amount of said order. The plaintiff', Bury, also proved that notwithstanding this, the appellee paid out after the presentation of the said order as aforesaid, to divers persons, the whole of the said amount due by her to Mathews, except the sum of $76 23, which was paid last of all to Bury. That Bury having learned that the city had paid out as is stated above, the whole amount due by her to Mathews, except the said sum of $70 23, he induced Mathews to give him two orders for his first one of $350. One for $76 23 which was paid as aforesaid, and another for $173 77, which never was paid.
    Bury also proved by the city engineer, who made the contract on the part of the city with Mathews, that he was city engineer as well during ¡he time of the building and completion of the hospital, as when the contract therefor was made, and that when the contract between Mathews and Bury was made, it was deposited in the city engineer’s office, and remained there until it was brought info court by subphenna duces tecum in this cause, and that it was so deposited in order that the appellant Bury might be paid as a sub-contractor, by the city of St. Louis. Moreover, that Mathews charged the city engineer that the amount coming to .Bury under his contract should be retained by the city, and that the engineer promised Bury that it should be retained accordingly.
    That the mode of payment by the city of the price she bad agreed to give for building said hospital, was by the city engineer drawing his order fiom time to time on the auditor, on the application or request of the contractor Mathews, who upon such orders drew his warrant upon the treasurer, who paid out the money upon this warrant.
    That the city engineer was authorized to cause a hospital to be erected for the use of the city.
    Upon the close of the plaintiffs evidence, the court below instructed the jury that “ on the case made by the plaintiff he cannot recover, for supposing all the matters set forth in the declaration to be proved, he has no cause of action. ” To this instruction the plaintiff excepted, and took a non-suit, with leave to move to set it aside, which was accordingly done. But the court overruled the motion, and plaintiff excepted and appealed.
    Polk, for appellant.
    1st. The plaintiff below produced proof to, sustain the allegations of his declaration, or at all events the allegations of the first and second counts.
    He was therefore entitled to recover. On the trial before the jury it is too late to attempt to defeat the plaintiff for the reason that the declaration does not state a cause of action sufficient to enable him to recover. Cost vs. Perbeck, Hong. 223; Camron vs. Reynolds, Cowper407 ; Safford vs. Stevins, 2 Wend. 158 ; 2 Fidds Practice,489 ; Sanford vs. Sanford, 2 Day 559; Graham’s Practice, 312.
    2d. The defendant filed a plea to the declaration, which was obviously bad, and the plaintiff demurred to the plea; the consequence was, that this demurrer would cutback and reach any substantial defects in the declaration. The effect was the same as if the defendant had filed a demurrer to the plaintiff’s declaration. 1 Chit. Pi, 707.
    But the defendant afterwards withdrew the plea to which plaintiff had demurred, which was tantamount to withdrawing a demurrer filed by himself to the declaration of the plaintiff.
    Now this courthave decided that if defendant demurs to plaintiffs declaration, and the demurrer is oyerruled by the court, that he cannot afterwards go on to trial, and when a verdict is rendered against him move to arrest the judgment for deficiencies jn the declaration. His refusing to abide by the judgment on the demurrer, and going on to trial on the facts, is a waiver of his right ever after to take advantage of the defectiveness of the declaration.
    A fortiori must be a voluntary withdrawal of a demurrer—be a waiver of his right ever after to avail himself of the errors that may be in the declaration.
    In this case then, where the plaintiff by his proof made out his case as set out in his declaration, he was entitled to his verdict first, and next his judgment thereon, as the defendant had waived his right to move in arrest of the judgment.
    So that by the course pursued by the court in this case, the defendant gets the same adyan-, tage that he might have had by a motion in arrest of judgment, and that too when he had voluntarily and deliberately waived his right to such motion.
    
      3d. The common pleas court erred in telling the jury that “ supposing all the matters set forth in the declaration to be proved, he had no caqse of action.” Because the third count at least seta forth a sufficient cause of action.
    For the support of this I need only to refer to that count. The duty which it charges the defendant with a violation of, is based upon and arises out of contracts which it avers to have been made by defendant with plaintiff upon a valid consideration, made by defendant through an agent it is true, but through an agent thereto fully authorized. If, theiefove, it be possible for the city of St. Louis to render herself responsible to Bury, by contracts, then the third count of this declaration sets forth a legal cause of action in favor of Bury against the city of St. Louis, the proof of which by evidence justifies a recovery by him.
    4th. I also contend that Bury, the plaintiff below, was entitled to recover on (he proof adduced by him to the jury, and that the court below erred in telling the jury by its instruction that £l on the case made by the plaintiff he cannot recover.”
    For this position 1 rely mainly upon the case as it stands in the bill of exceptions, and refer particularly to the testimony of Ifayser on page 31, showing a privity of contract between the plaintiff Bury and the city of St. Louis, showing that upon the request of both Mathews and Bury, he promised Bury that the amount coming to him under his contract with Mathews should be retained out of the amount due by the city to Mathew's,
    J aiso refer to the city ordinance on page 33 of the record authorizing the city engineer to cause a city hospital to be erected, as empowering tne engineer to make the contract last referred to, as well as the contract between Mathews and the city for the erection of the hospital.
    That this contract made with Bury through Ifayser, was binding, I refer to the case of Mark vs. the bank of the Slate of Missouri, 8 Mo. 316, in which this court held that the bank might npjke a contract that would be binding on her, notwithstanding the 28th section of the charter provides that every contract or agreement in behalf of the corporation shall he signed by the president, and countersigned by the cashier, and that its funds should be held by no contract unless so executed.
   McBride, judge,

delivered the opinion of the court.

The question presented for our consideration is, whether after a plaintiff has given evidence conducing to prove the facts charged in his declaration, the court is authorized, either on the motion of the defendant, or of its own accord, to instruct the jury that the plaintiff cannot recover, for the reason that his declaration sets out no cause of action, or sets it out defectively ?

There are two modes treated of in the books on pleadings, by which a defendant can avail himself of defects in the declaration; one is by demurrer to the declaration, and the other is by moving in arrest of the judgment, should a recovery be had against liim. The first is the most usual and advisable, inasmuch as defects which would be cured by virdicts, it would afford the plaintiffs a more ready opportunity of amending his declaration, and presenting his case in such a form as would entitle him to a trial upon the merits.

In this case, the defendant filed a special plea to the declaration, which called forth a demurrer from the plaintiff; this state of the pleadings would have afforded the court a legitimate opportunity of deciding upon the sufficiency of the declaration, had the defendant not withdrawn his plea, for no principle is better settled in pleading, than that a demurrer tests the goodness of all the previous pleadings, whether on the part of the plaintiff or the defendant. Having withdrawn his plea, it was a virtual waiver, at least for the time being, on the part of the defendant, of any objection to the declaration, and this course may have been superinduced, from a confidence on the part of the defendant, that he could defeat the action, on the merits, and thereby obtain a bar to any subsequent action, for the same cause.

If, however, the defendant declines calling in question the sufficiency of the declaration, in the manner above indicated, and the plaintiff proves his case as therein set forth, is it the province of the court to instruct the jury that they cannot find for the plaintiff? Such a course on the part of the court, cannot be regarded as a demurrer to the declaration, and that too on the part of the court, and the effect of which is to preclude the plaintiff from amending his declaration.

We find the principle recognized in several of the books referred to by the plaintiffs attorney, that if the plaintiff proves all that is laid in his declaration, he ought not to be non-suited; that if the declaration is insufficient, the defendant may avail himself of the defect by demurrer; if he neglects to do that, he cannot avail himself of the objection at the trial, but will be put to his motion in arrest of judgment. The only ground for non-suit at'the trial must be, that the proof is not sufficient to support the declaration.

Wherefore, the court of common pleas in its instruction and its judgment ought to be reversed, and the other judges concurring the judgment is reversed and the cause remanded.  