Clark v. Phillips
Decision Date | 04 March 1889 |
Citation | 99 Mo. 550,11 S.W. 53 |
Parties | CLARK v. PHILLIPS et al. |
Court | Missouri Supreme Court |
Appeal from circuit court, Cole county; J. L. SMITH, Special Judge.
Action by C. L. Clark against E. A. Phillips and G. W. Sedgwick, copartners. The original petition contained but two counts, to which defendants filed an answer, when plaintiff filed an amended petition containing a third count. The first and second counts of the petition are not involved in this appeal. The third count is as follows, to-wit: "And plaintiff, for a further and another cause of action, states and says that defendants, as said partners hereinbefore stated, are indebted to him, after allowing all just credits, in the sum of $7,079.24, for money had and recovered for plaintiff's use, and for ties (other than those mentioned in the first and second counts of this petition) sold and delivered by plaintiffs to defendants, at divers times between the 6th day of June, 1877, and the 1st day of August, 1879, as will more fully appear by the account herewith filed and annexed to this petition, for which said sum of $7,079.24 plaintiff asks judgment, with costs." The account is as follows:
E. A. Phillips & Co., To C. L. Clark, Dr ====================================================== To railroad ties delivered from the 6th day of June, 1877, to October 24, 1877 at various landings on the north bank of the Missouri river and Auxvasse river, (in Callaway county,) numbering 16,350, 1st-class ties, at 33 cents per tie.................................. $5,395 50 1060 2d-class ties, at 18 cents............ 191 52 From January 31, 1878, to December 31 1878, 21,979 1st-class ties, at 33c...... 7,252 07 16,000 1st-class ties, at 32 cents......... 5,280 00 2,581 2d-class ties, at 18 cents........... 464 58 To balance percentage on ties taken from Allen land.......................... 125 00 To timber for twenty sets switch ties at $27 per set........................... 240 00 To five $100 notes given by Douglass & Martin................................... 500 00 From January 1, 1879, to August 1, 1879, to 14,083 1st-class ties at same landing, at 33 cents per tie...................... 4,317 39 To 2,281 2d-class ties, at 18 cents........ 408 58 To 46 ties, at 18 cents.................... 4 60 __________ Total................................... $24,079 24 By credits by drafts and checks given payable to my order, and cash, $25, received, and orders made on me on Phillips & Co., aggregating.............. 17,000 00 __________ Balance................................. $7,079 24 ------------------------------------------------------
Defendants filed a general denial to the third count, and alleged that they had settled and paid all their indebtedness to plaintiff. J. L. Smith was elected as special judge for the trial of the cause, and D. H. McIntyre was appointed referee. The latter filed his report, finding for the plaintiff on the first and second count, and for defendants on the third count. Plaintiff filed exceptions to the report of the referee on all three counts. The circuit judge overruled plaintiff's exceptions to the first and second counts, and sustained them to the third count, and set aside the finding of the referee on the third count for defendants, and rendered and entered up another and different finding for plaintiff. Defendants filed motions for a new trial and in arrest of judgment, which were overruled. Defendants appeal. That portion of the report of the referee pertaining to the third count is as follows: ...
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In re Dunlap's Estate
... ... Frank Holmes, of McMinnville (J.S. Cook, of Burns, on the brief), for appellant ... Clarence B. Phillips and Robert M. Duncan, both of Burns, for respondents ... KELLY, J ... On or about April 18, 1932, W.H. Dunlap died ... ...