Buxton v. Debrecht

• Decision Date: 22 July 1902
• Citation: 69 S.W. 616,95 Mo.App. 599
• Parties: ALBERT G. BUXTON, Respondent, v. AUGUST F. DEBRECHT, Appellant
• Court: Missouri Court of Appeals

69 S.W. 616

95 Mo.App. 599

ALBERT G. BUXTON, Respondent, v. AUGUST F. DEBRECHT, Appellant

Court of Appeals of Missouri, St. Louis

July 22, 1902

Appeal from St. Louis City Circuit Court.--Hon. John A. Talty Judge.

REVERSED (with directions).

Reversed and remanded.

Bass & Brock for appellant.

(1) In all cases where the court may, under section 698 (R. S 1899), on motion of either party, without the consent of the other, or on its own motion, direct a reference, it may review the findings of the referee on the evidence reported even though the reference is actually made by agreement. State ex rel. v. Hurlstone, 92 Mo. 327; Caruth-Byrnes Hardware Co. v. Walter, 91 Mo. 484; Williams v. Railroad, 153 Mo. 487. (2) In this case, as in a case when a reference is compulsory, the court may set aside the referee's report in favor of the plaintiff, and find for the defendant on the evidence reported by the referee. Wentzville Tobacco Co. v. Walker, 123 Mo. 662; Williamson v. Railroad, 153 Mo. 487. (3) In this case no counterclaim was filed, but a certain overpayment made on the original contract was set forth in the evidence, and the defendant asked the referee and the court to apply this overpayment to the necessary extent to the payment of the bill for extras according to the undoubted law. The law will apply money thus overpaid as justice and equity require. Benny v. Rodes, 18 Mo. 147; Gantner v. Kemper, 58 Mo. 567; Short-ridge v. Pardee, 2 Mo.App. 363; Poulsen v. Collier, 18 Mo.App. 583. (4) The $ 498 paid by defendant on February 11, 1898, was a substantial overpayment forced out of defendant by the threat of a lien on his property. This overpayment was under compulsion, and the defendant has a right to recover it back or have it applied under the principle in point 3. St. Louis Brewing Ass'n v. St. Louis, 140 Mo. 419; West Lake v. St. Louis, 74 Mo. 47; Wolf v. Marshal, 52 Mo. 167.

Rassieur & Buder for respondent.

"Though no formal pleadings are required in justices' courts, yet defendant must, in order to avail himself of a counterclaim or set-off, file a statement thereof with the justice before the trial." Stephens v. Barber Supply Co., 67 Mo. 587; Hayden v. Maher, 67 Mo.App. 434; West v. Freeman, 76 Mo.App. 96; Gantt v. Duffy, 71 Mo.App. 91.

BARCLAY, J. Bland, P. J., and Goode, J., concur.

OPINION

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 fifty-nine in number. The amount demanded therefor was $ 246.21. 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 these 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 (R. S. 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-hundredths dollars.

"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-hundredths dollars.

"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-hundredths dollars, with interest from date of the bringing of this suit to the present date at the rate of six per cent, amounting to seventeen and eighty-four one-hundredths dollars.

"In conclusion, I therefore find that there is due plaintiff from defendant the sum of one hundred and ninety-three and one one-hundredth dollars, 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 was any objection whatever then made to any ruling on evidence, although an exception had been duly noted before the referee at the time of the original ruling. An assignment of error, however, appears in the motion for new trial based on the alleged improper admission of the testimony aforesaid. But the objection was too late.

One of the features of a hearing before a referee which the law contemplates he shall report, if required, is his ruling admitting evidence over exception taken. R. S. 1899, sec. 712. Here the referee reported the particular ruling in question, but defendant's formal exception to the report did not challenge the ruling as erroneous, or even allude to it. We consider that the original exception thus became forever lost, and that it disappeared beyond recall for all purposes of review here.

2. The main assignment of error argued on this appeal concerns the effect of the credits claimed by defendant, in view of the state of the record. If those credits were only available to defendant by way of counterclaim or set-off, we must ignore them, for they were not presented in that form before the justice of the peace under sections 3852, 3937, Revised Statutes 1899. If, on the other hand, those credits may properly be treated as payments on the account in suit, they were admissible as a defense without the formality of any written plea, notice or other step beyond the introduction of proof, in the trial courts where the case has been. Reed v. Snodgrass, 55 Mo. 180; Rider v. Culp, 68 Mo.App. 527. No formal pleadings are required to present a defense in a justice's court (R. S. 1899, secs. 3852, 3993), except certain special ones enumerated; for example: claim of title to land, and set-off (R. S. 1899, secs. 3951, 3937). But payment is not one of these excepted defenses.

Plaintiff's entire claim, stated most favorably, was never greater than as follows:

Contract price of house

$ 1,793.00

Commission or profit on lumber bill

122.37

Extra items on...