Browning v. North Missouri Central Railway Co.

• Decision Date: 19 June 1920
• Parties: E. T. BROWNING v. NORTH MISSOURI CENTRAL RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

224 S.W. 748

284 Mo. 439

E. T. BROWNING v. NORTH MISSOURI CENTRAL RAILWAY COMPANY, Appellant

Supreme Court of Missouri

June 19, 1920

Appeal from St. Louis City Circuit Court. -- Hon. M. Hartman, Judge.

Reversed and remanded.

Charles G. Revelle and N. T. Gentry for appellant.

(1) The court erred in denying the defendant its right to a jury trial and in compulsorily referring the cause to a referee. (a) The primary purpose of this action is to obtain damages and such actions cannot be compulsorily referred. Reed v Young, 248 Mo. 606; Elks Investment Co. v Jones, 187 S.W. 71; Martin v. Hall, 26 Mo. 389; Robinson v. N. Y. Railroad Co., 12 N. Y. St. 66, 109 N.Y. 658. (b) Demands arising from breach of contract however numerous and though separately itemized, do not constitute an account. Reed v. Young, 248 Mo. 606; Tunison v. Snover, 56 N. J. L. 41; Telephone Co. v. Bickford, 142 N.Y. 224; Morrison v. Benthuysen, 103 N.Y. 675; Andrews v. Insurance Co., 73 Wis. 642; Ice Co. v. Tamm, 138 Mo. 385; Wiley v. Logan, 96 N.C. 510; 34 Cyc. 782. (c) Where the substantial issue involved is fraud a reference cannot be ordered. Morrison v. Horrucks, 40 Hun. (N. Y.) 428; Freeman v. Insurance Co., 13 App. P. R. (N. Y.) 124. (d) Where there is but one principal transaction, as where services are all performed under one contract, a long account is not involved. Russell v. McDonald, 425 A.D. 844; Smith v. Assurance Corp., 114 A.D. 868. (e) In order to authorize a reference, the account must be directly and not merely collaterally or incidentally involved; in other words, the account must be the primary object of the action. Doyle v. Railway Co., 136 N.Y. 505; Kamp v. Ingersoll, 86 N.Y. 433; Lumber Co. v. Bernard, 131 Wis. 284; 34 Cyc. 785; Aronin v. Casualty Co., 54 Misc. (N. Y.) 630. (f) The terms "examining a long account" are used in the statute in the sense in which they are ordinarily understood, and do not imply an account stated or a bill of particulars, but refers to a series of charges made at various times covering many transactions between the parties, or to an account kept by one party or the other -- a series of charges made at various times as the transactions occurred. Reed v. Young, 248 Mo. 616; Ice Co. v. Tamm, 138 Mo. 385; Whitwell v. Willard, 1 Metc. 216; Investment Co. v. Jones, 187 S.W. 75; Ittner v. Exposition Assn., 97 Mo. 385; 34 Cyc. 782. (g) Even if the present case involved the examination of a long account, the real issues framed by the answer and reply are such that if the defense prevailed upon the issues tendered by the answer, plaintiff's cause would fail. The general rule is that where there is an issue, the determination of which may render an accounting unnecessary, a reference should not be ordered until such issue is decided and an accounting found necessary. Malone v. Church, 172 N.Y. 269; Duckworth v. Duckworth, 144 N.C. 620; Reagers v. Chappelear, 104 Vt. 44. (h) Even if it could be said that the demands sued upon amount to an account, they do not constitute a long account. Ice Co. v. Tamm, 138 Mo. 385. (i) The contract was conditional and never became operative.

Fauntleroy, Cullen & Hay and Ralph T. Finley for respondent.

The court did not err in holding that this is a case for compulsory reference. (1) The pleadings and evidence in this case show conclusively that the determination of the issues involves the examination of a long account. Ittner v. St. Louis Exposition Assn., 97 Mo. 567; Lumber Co. v. Stoddard Co., 113 Mo.App. 317; Phillips v. Todd, 180 S.W. 1039; Smith v. Haley, 41 Mo.App. 611; Reifschneider v. Beck, 148 Mo.App. 725; State v. Railroad, 24 Ill. 188; R. S. 1909, sec. 1996. (2) The mere fact that the action is for breach of contract does not prevent a reference, provided the items are proper charges of account under the contract. Craig v. Furniture Co., 187 S.W. 797; Valleroy v. Enright, 179 Mo.App. 556; St. Louis v. Parker-Washington Co., 271 Mo. 229; State ex rel. v. Reynolds, 245 Mo. 689; Chicago & N.W. Ry. Co. v. Faist, 87 Wis. 360, 58 N.W. 745. (3) Compulsory reference is not error as to matters not constituting a good defense or as to which proof failed. Arensmeyer v. Ins. Co., 254 Mo. 380; Dee v. Nachbar, 207 Mo. 680; R. S. 1909, sec. 2082.

GRAVES J. Woodson, J., absent.

OPINION

In Banc

GRAVES, J. --

This is an action for a breach of a contract. Both sides so denominate it. The first count alleges a contract between plaintiff and defendant by the terms of which plaintiff was to furnish to defendant certain railroad ties, and poles for its proposed electric railroad from Mexico, Missouri to North Jefferson, Missouri. With the views that we have of the case the fuller details of the contract will serve no good purpose. Nor are the subsequent agreed modifications of the contract, as alleged, material for our disposition of the case. Suffice it to say in this count of the petition the plaintiff charges:

"Plaintiff now shows to the court that as his duty was under said contract he delivered to the defendant on defendant's right-of-way on or before the 1st day of May, 1910, 3474 No 1 ties of the kind and character in said specifications mentioned and 421 No. 2 ties of the kind and character in said specifications mentioned, whereby defendant became indebted to him in the sum of $ 2489.65, for which on the 4th day of May, 1910, defendant executed and delivered to him an acceptance, a copy of which is herewith filed, marked 'Exhibit D,' and made a part of this petition.

"That on or before the 30th day of June, 1910, plaintiff under and by virtue of the terms of said contract, delivered to the defendant on defendant's right-of-way 4638 No. 1 ties and 400 No. 2 ties of the dimensions and character described in said specifications, whereby defendant became indebted to plaintiff in the further sum of $ 3234.70, for which defendant executed and delivered to plaintiff acceptances of date July 7, 1910, copies of which are hereto attached, marked respectively 'Exhibit E' and 'Exhibit F,' and made a part hereof.

"That on or before June 30, 1910, under and by virtue of the terms of said contract, plaintiff delivered to defendant in the Town of Columbia, Missouri, 1011 No. 1 ties and 76 No. 2 ties of the kind and character required in the specifications attached to said contract, whereby defendant became indebted to the plaintiff in the further sum of $ 731.56, and for which defendant executed and delivered to plaintiff an acceptance of date July, 7, 1910, a copy of which is herewith filed and marked 'Exhibit G' and made a part of this petition.

"That on or before July 31, 1910, under and by virtue of the terms of said contract, plaintiff delivered to defendant at Columbia, Missouri, 1478 No. 1 ties and 147 No. 2 ties of the kind and character contracted for by defendant, for which defendant became indebted to plaintiff in the further sum of $ 1090.30, for which defendant executed and delivered to plaintiff acceptances of date of July 12, 1910, and July 16, 1910, copies of which are herewith filed, marked 'Exhibit H' and 'Exhibit I,' and made a part hereof.

"That on or before September 20, 1910, under and by virtue of the terms of said contract, plaintiff delivered to defendant on various points on defendant's right-of-way 11,473 No. 1 cross-ties of the kind and character contracted for by the defendant, for which defendant then and there became indebted to plaintiff, and bound to pay him at the rate of sixty-five cents for each tie; and on or before the same day plaintiff delivered to defendant, on defendant's right-of-way 1,882 No. 2 cross ties of the kind contracted for, for which defendant then and there became indebted to plaintiff in the sum of fifty-five cents for each tie, amounting in the aggregate to $ 8532.55; that defendant has refused to inspect or accept said ties and that said ties are worth at the nearest market point forty-five cents for the No. 1 ties and twenty-two cents for the No. 2 ties, and that it will cost plaintiff $ 2374.64 to remove said cross ties from said right-of-way to such nearest market point and the plaintiff shows to the court that the greatest sum that he can realize upon the sale of said ties at the nearest market points is $ 3202.25, which being subtracted from the contract price agreed to be paid to plaintiff by defendant, leaves due him as his damage upon said ties, the sum of $ 5330.30.

"Wherefore plaintiff shows that defendant became indebted to him by reason of the premises for ties delivered and accepted in the sum of $ 7464.85, and for damages for the ties so delivered, but not inspected or accepted, in the sum of $ 5287.23.

"That before July 1, 1911, plaintiff could have furnished within the time required by said contract 136,326 cross ties of the kind and character provided for in plaintiff's contract with the defendant and 6074 No. 2 cross ties of the kind and character provided for in plaintiff's contract with defendant, and that plaintiff was then and there and at all times able, ready and willing to deliver the same, but that defendant stopped and prevented the delivery thereof, as will more fully hereinafter appear, and plaintiff shows to the court that the market values of said ties at the nearest market points are, to-wit, forty-five cents per tie for No. 1 ties and twenty-two cents per tie for No. 2 ties, for which price the plaintiff could have furnished said ties, and that plaintiff will lose in the sale of said ties the difference between the cost of furnishing and delivering the same to defendant, to-wit, the sum of $ 29,269.62.

"That before July 1, 1911, plaintiff could have procured and furnished to the defendant, under and by virtue of his said contract and supplements thereto, in order to fulfill the same,...