Chambers v. King

• Decision Date: 31 January 1844
• Citation: 8 Mo. 517
• Court: Missouri Supreme Court
• Parties: CHAMBERS v. KING & TUNSTALL.

8 Mo. 517

CHAMBERS

v.KING & TUNSTALL.

Supreme Court of Missouri.

January Term, 1844.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

DRAKE and RANNELLS, for Appellant. 1. The court below erred in overruling the first instruction asked by the defendant, Chambers', counsel. No rule of law is better settled than that embodied in that instructon, viz.: that when there is a written agreement, or indeed any special agreement, the party must recover on that, and cannot waive it and resort to a quantum meruit, or implied assumpsit. Champlin v. Butler, 18 Johns. R. 169 Munford v. McPherson, 1 ibid. 414; 3 Mo. R. 366. 2. The second instruction, from the want of evidence to sustain it, was perhaps properly overruled. 3. The court below erred in overruling the motion for a new trial. The verdict was clearly against the evidence in the cause, and whenever the jury have clearly erred and the court refuses a new trial, it is error. 4 Mo R. 80. It is error when the evidence strongly preponderates against the verdict. 3 Mo. R. Singleton v. Mann, and 6 Mo. R. 61.

POLK, for Appellees. The St. Louis Court of Common Pleas committed no error in this case by refusing a new trial. 1. Because the court did not err in refusing said instructions, as they are not according to law, and nothing in the case to warrant the giving of them. 2. The jury did not err in finding their verdict from the evidence. The Supreme Court will not disturb the verdict of juries, except it be a flagrant case, which would justify their interference. See the case of Lackey v. Lane and McCabe, and the authorities there oited. 7 Mo. R. 220, which decision was made at September term, 1841, in the third judicial district, at St. Louis.

NAPTON, J.

King & Tunstall sued the appellant, before a justice of the peace, on an account for professional services as attorneys at law, in a suit between appellant and the Union Fire Engine Company, which account was filed before the justice, and claimed fifty dollars. The result of the trial before the justice was a verdict and judgment for appellant, from which King & Tunstall appealed to the Court of Common Pleas, where, on a trial de novo, they obtained a verdict and judgment for thirty dollars. The appellant applied for a new trial in the Court of Common Pleas, but was unsuccessful, and took his bill of exceptions, in which is preserved all the testimony given on the trial, and the instructions refused by the court.

It appears from this bill of exceptions, that the plaintiffs had instituted and faithfully prosecuted, on behalf of defendant, an action before a justice of the peace, to recover possession of a lot in St. Louis occupied by the Union Fire Company; that, on appeal to the Circuit Court, the same plaintiffs diligently attended to the interests of their client, the appellant here, and in the opinion of the witnesses, who were also attorneys, the services of plaintiffs were well worth fifty dollars. It seemed also that the appellant suceeded ultimately in obtaining possession of the lot in dispute between him and the fire company, and that the fire company held as tenants under him, and in his settlement with an agent of the...