Buxton v. Debrecht

• Decision Date: 22 July 1902
• Parties: BUXTON v. DEBRECHT.
• Court: Missouri Court of Appeals

69 S.W. 616

95 Mo. A. 599

BUXTON v. DEBRECHT.

Court of Appeals at St. Louis, Missouri.

July 22, 1902.

WORK AND LABOR — SET-OFF — PLEADING — APPLICATION OF PAYMENTS — CREDITS — OBJECTIONS TO EVIDENCE — JUSTICE OF THE PEACE — PLEADING.

1. Plaintiff was a contractor for erecting a building for defendant for $1,793. He also did extra work upon the building to the amount of $264.21. During the progress of the work defendant made payments to plaintiff to an amount exceeding both of the above-mentioned sums, and he proved that fact in a suit brought before a justice of the peace. Held, that it was not necessary for defendant to file a set-off or counterclaim to obtain the benefit of said credits on the account for extra work.

2. Where a debtor makes payments indiscriminately to a creditor, to whom he is indebted on two accounts, after the complete payment of one account thereof credits will thereafter be applied to the other account. By mutual consent parties to a contract may respectively pay and receive payment in advance for items due in advance, though advance payment may not be demandable as a matter of right.

3. It is competent for parties to a contract to provide by agreement that groceries may be taken in part payment of the contract price, and such a credit may be obtained without filing it as a set-off in a suit on the contract.

4. Where evidence is admitted against objection and exception before a referee, but that ruling is not assigned as error in the exceptions to the report filed in court, the objection is waived, and cannot be revived for review by being mentioned in a subsequent motion for new trial.

5. Payment is a defense available in an action before a justice of the peace without any written pleading by defendant.

6. No formal pleading by defendant is required in a justice's court except in the instances expressly defined by statute.

7. Where an action involves a long account, it is a subject for compulsory reference (Rev. St. 1899, § 698), and in such a case a review upon appeal extends both to the law and the facts of the case.

(Syllabus by the Judge.)

Appeal from St. Louis circuit court; Jno. A. Talty, Judge.

Action by Albert G. Buxton against August F. Debrecht. Judgment for plaintiff, and defendant appeals. Reversed.

Bass & Brock, for appellant. Rassieur & Buder, for respondent.

BARCLAY, J.

This action was begun before a justice of the peace to recover the value of a number of items of extra work and labor which plaintiff furnished to defendant in the construction of a building. The items of account were 59 in number. The amount demanded therefor was $246.21½. There was a judgment for plaintiff before the justice for $175.21, with costs, followed by defendant's appeal to the circuit court, where the cause was referred by consent of both parties. Certain facts are admitted on both sides. Plaintiff made a written contract with defendant for the building of a store for the latter in St. Louis for $1,793. Plaintiff did that work. He also furnished, during the same period, the extra items which form the subject of this suit. Defendant made a number of payments in various ways. The controversy on this appeal concerns those payments. There was an understanding between the parties (or at least a practice of dealing while the building was going on) that defendant should pay the bills for lumber used in the building to the company which delivered the lumber to plaintiff, and that defendant should have credit for those payments on his account with plaintiff. Defendant testified (and it was not denied) that he made a number of payments (the particulars of which will be mentioned later) to an amount exceeding the total claim of plaintiff. The latter seeks to repel the effect of those payments by the argument that they were made solely on account of the first written contract, not on account of the "extras" sued for in this action, and hence are not maintainable as credits in this case, because defendant interposed no set-off or counterclaim before the trial in the justice's court, as provided by sections 3852, 3937, Rev. St. 1899. We shall return again to the testimony, but the foregoing outline seems necessary to introduce the following finding and conclusion of the learned referee, after a full hearing and report: "Upon the evidence thus adduced I find the facts to be as follows: That plaintiff performed all the labor and furnished all the materials mentioned in the itemized account filed as the basis of this suit, aggregating the sum of two hundred and forty-six and twenty-one one-hundreths dollars ($246.21). That said labor was properly performed, and the prices charged in the itemized account were reasonable at the time the labor was performed and materials furnished. Defendant introduced evidence that on the original building contract between plaintiff and defendant, defendant made excessive payments to plaintiff, which should now be allowed defendant as credits against plaintiff's account for extras on which this suit is based. From defendant's evidence I find that on said original contract excessive payments were made by defendant to the sum of seventy and eighty-four one-hundreths dollars ($70.84). No counterclaim was filed by defendant, but I admitted the evidence, and allowed defendant credit for the amount of $70.84. I therefore find that there is now due plaintiff from defendant, as balance on said account, the sum of one hundred and seventy-five and thirty-seven one-hundreths dollars, with interest from date of the bringing of this suit to the present date at the rate of 6 per cent., amounting to seventeen and eighty-four one-hundreths dollars ($17.84). In conclusion I therefore find that there is due plaintiff from defendant the sum of one hundred and ninety-three and one-hundreths dollars ($193.01), and that plaintiff is entitled to judgment for such sum and costs." Defendant duly filed an exception to the finding of the referee concerning the payments, and asserted that "under the law and the evidence in this cause the referee ought to have found that the defendant did, before the institution of this cause, pay the plaintiff the full amount of his demand for extra work, labor, and materials, to wit, two hundred and forty-six dollars and twenty-one cents." On that ground the court was asked to set aside the referee's finding. The court, on the contrary, approved the report, and accordingly entered judgment for plaintiff for $193.01. Defendant filed a motion for new trial without avail. Then he took this appeal, after preserving for review the essential facts by bill of exceptions.

1. Defendant assigns as error a ruling of the referee admitting certain testimony on behalf of plaintiff touching interviews between the parties, in circumstances which defendant insists entitle the admissions then made by defendant to immunity from disclosure as statements looking to a compromise. But in defendant's exception filed to the report no such point of objection to the referee's proceedings is made; nor...