Barger v. Beach
| Decision Date | 04 April 1910 |
| Citation | 127 S.W. 120,142 Mo.App. 389 |
| Parties | J. W. BARGER, Respondent, v. J. H. BEACH, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Greene Circuit Court.--Hon. James T. Neville, Judge.
REVERSED AND REMANDED (with directions.)
Judgment reversed and cause remanded.
O. E Gorman and A. H. Wear for appellant.
The court erred in referring this case over the objection of defendant. R. S. 1899, sec. 698; Ice Co. v. Tamm, 138 Mo. 385; Dooley v. Barker, 2 Mo.App. 325; Thornton v. Life Ass'n, 7 Mo.App. 544; Kent v. Highleyman, 28 Mo.App. 614; Father Matthew Society v. Fitzwilliams, 12 Mo.App. 445; Ittner v St. Louis Ex. Assn., 97 Mo. 567; Bouvier Law Dictionary; Schmidt v. Rose, 6 Mo.App. 579; Snyder v Crutcher, 137 Mo.App. 121; Investment Co. v. Bank, 96 Mo.App. 125.
A. C. Hayward, O. T. Hamlin and Alfred Page for respondent.
(1) The mere fact that appellant did not controvert the contention that he charged respondent just fifty cents per pair more than the cost mark indicated, and that this was done on four hundred and ninety-six pairs of shoes, thus greatly simplifying the issues in the cause, does not render the reference improper. Father Matthew Society v. Fitzwilliams, 12 Mo.App. 445; Johnson v. Blell, 61 Mo.App. 40. (2) There can be no question under the law in this State but that the court has a right to set aside the findings of a referee, and render such judgment as the law and the evidence require. Utley v. Hill, 155 Mo. 276; Tobacco Co. v. Walker, 123 Mo. 671; Hardware Co. v. Walter, 91 Mo. 484; State ex rel. v. Hurlstone, 92 Mo. 327.
This cause originated before C. A. Hubbard, a justice of the peace in Greene county, on the 26th day of June, 1907. The plaintiff's cause of action consisted of a statement filed in the justice court, in which he alleged that on the 7th day of June, 1907, he contracted with defendant to purchase a stock of shoes, and defendant agreed to sell said shoes to the plaintiff at the price said shoes cost defendant, and which said price was marked in defendant's cost mark upon each box of shoes; that he did not know the meaning of defendant's cost mark, and relied upon the defendant interpreting same for him; that the defendant wrongfully charged the plaintiff fifty cents per pair more for said shoes than they cost the defendant, by reason of which the plaintiff paid to the defendant fifty cents per pair for five hundred pairs of shoes so purchased, more than he should have paid for said shoes, and asked judgment for $ 250. The cause was tried before a jury in the justice court, resulting in a verdict and judgment in favor of plaintiff for $ 248, and defendant appealed to the circuit court of Greene county.
In the circuit court the plaintiff filed a motion to have the cause referred to a referee, and assigned as reasons therefor, that the trial of the issue of fact in the case would require the examination of a long account on the part of plaintiff. The court appointed a referee, to which action of the court defendant excepted. The cause was tried before the referee and a report was made by him recommending that judgment be rendered in favor of the defendant. The plaintiff filed exceptions to the report of the referee, and which were, by the court, sustained, and a judgment rendered by the court in favor of the plaintiff in the sum of $ 248. The action of the court in setting aside the report of the referee and rendering judgment thereon, was objected to and excepted to by the defendant. The defendant also in his motion for new trial, complained of the action of the court in appointing the referee.
The only point in which we are concerned on this appeal, is the action of the court in appointing a referee in the case. The statute authorizes the court to appoint a referee, where the parties do not consent, in a case where the trial of an issue of fact shall require the examination of a long account on either side. The right to trial by jury is a sacred one enjoyed by our people, and legislation attempting to give that right into the hands of a referee, should be strictly construed; and any attempt to legislate, or by judicial interpretation, take from the people the statutory right thus guaranteed, and for a long time enjoyed, should not be encouraged by the courts. Indeed, there are many States in the Union in which the highest courts have held that statutes authorizing compulsory references in actions at law in trials of issues of fact, are unconstitutional. These authorities are collected in the note to Russell v. Alt, decided by the Supreme Court of Idaho, in 1907, and reported in the 13 L.R.A. 146. Our Supreme Court has held the statute constitutional, but declared that it is an exception to the right of trial by jury, and a case should clearly appear to fall within the letter and principles of the statute before a party can be deprived of his jury trial. [Ice Co. v. Tamm, 138 Mo. 385, 39 S.W. 791.]
In this case, the plaintiff alleged that he had purchased five hundred pairs of shoes of defendant, and he was to have them at what they had cost the defendant, and that this cost was shown by the mark of the defendant on the different boxes in which the shoes were contained; that the defendant deceived the plaintiff, as to the cost mark, and as the mark was interpreted by the defendant and accepted by plaintiff, he did pay fifty cents more on a pair for the shoes than they really cost defendant.
The plaintiff's evidence disclosed that defendant told the plaintiff to take the cost mark on the shoes (which was in figures), divide the first figure by four, add five to the second figure, and he would have the true cost price. To illustrate: If the cost mark on the shoes was four dollars then the defendant told the plaintiff to determine the true cost price, divide the first figure by four, add five to the second figure, and he would have the true price. This would make the true cost price one dollar and fifty cents. The evidence shows that the true cost price was determined simply by dividing the first figure by four. The act of adding...
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