Barber v. McDonald
| Decision Date | 04 December 1922 |
| Docket Number | No. 14348.,14348. |
| Citation | 245 S.W. 357 |
| Parties | BARBER v. McDONALD. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Morgan County; John G. Slate, Judge.
"Not to be officially published."
Action by James A. Barber against Rice McDonald, with counterclaim by defendant. Judgment for defendant for less than the amount claimed by him. A new trial was denied, and defendant appeals. Reversed and remanded.
Richard H. Woods, of Versailles, and J. M. Johnson, of Kansas City, for appellant.
John J. Jones, of Kansas City, for respondent.
This is a suit on account for pumping water from a mining shaft near Versailles, in Morgan county, Mo., in the sum of $335.25.
The petition sets up the fact that plaintiff was employed to do pumping by one F. D. Rice, agent for defendant herein; that he entered upon said employment November 3, 1919, and was to receive therefor the sum of $15 per day, and that such operations continued during the months of November and December, 1919, until a total amount of indebtedness due plaintiff from defendant was $350.50, with a credit of $15.25, leaving a balance due of $335.25, as shown by a statement of account filed by plaintiff.
The answer is, first, a general denial and, as further answer, defendant filed a counterclaim for $619.87, due defendant from plaintiff, based upon a contract for cutting and marketing some timber upon a tract of land owned by defendant in Morgan county, Mo., and making same into lumber and ties. Judgment is asked on this counterclaim in the sum of $619.87.
The reply admits the execution of a written contract for the manufacture of lumber and ties from defendant's timber, but alleges that a mistake was made in the written contract, in that it failed to provide, as per agreement, that plaintiff was to receive 55 per cent. and defendant 45 per cent. of the proceeds of the sale of the lumber and ties, after the expenses of cutting and marketing had been paid.
The replication is in the form of a general denial of facts pleaded in the reply and states the written contract expressed the full intent of the parties. The cause, tried before a special judge and to a jury, resulted in the following verdict:
Judgment was entered accordingly. Defendant, not being satisfied with the amount of recovery on the counterclaim, filed a motion for a new trial which was overruled, and he brought the case here by appeal.
The first point urged is that the court erred in refusing defendant a new trial because the verdict is against the law as set forth in the instructions given by the court on behalf of plaintiff. Instruction No. 1 for plaintiff is as follows:
"The court instructs the jury that if the defendant owned the land or had it in his possession, and knew of the contract with Barber and Harrison or Crewson, and acquiesced in said contract, and that he (McDonald) agreed to pay for said pumping, then you will find the issues in favor of the plaintiff in the reasonable value of his services, not to exceed the sum of $335.25; provided you cannot find any verdict in favor of plaintiff although he has earned the said sum, if you find and believe that plaintiff owes the defendant a sum on defendant's counterclaim equal or greater than the amount due plaintiff for pumping, in such case you may offset the two claims and give a verdict in favor of the greater."
Instruction No. 2, for defendant, reads:
"Th...
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