Creve Coeur Lake Ice Company v. Tamm
| Decision Date | 23 March 1897 |
| Citation | 39 S.W. 791,138 Mo. 385 |
| Parties | Creve Coeur Lake Ice Company v. Max Tamm et al., Appellants |
| Court | Missouri Supreme Court |
Transferred from St. Louis Court of Appeals.
Reversed and remanded.
Everett W. Pattison for appellants.
(1) There is no issue of fact which requires the examination of a long account within the meaning of Revised Statutes 1889 section 2138. Dooley v. Barker, 2 Mo.App. 325; Ittner v. St. Louis Exposition, 97 Mo. 561. (2) If this case can be said to involve an account, it is certainly not a long one. (3) If exhibit "A" were in fact an account, then under section 2075, Revised Statutes 1889 plaintiff was precluded from giving any evidence of the items thereof, since said account was neither set forth in nor attached to the petition. (4) The action is one for breach of contract, sounds in tort, and is not referable under the statute. Van Renseller v. Jewett, 6 Hill, 373; Camp v. Ingersoll, 86 N.Y. 433; Untermeyer v. Beinhauer, 105 N.Y. 521; Johnson v. Railroad, 139 N.Y. 449. (5) No discretion was vested in the court. It was a case of lack of power. Martin v. Windsor Hotel Co., 70 N.Y. 101; Fitzgerald v. Hayward, 50 Mo. 516; Kent v. Highleyman, 28 App. 614. (6) The finding of the referee was excessive under the admissions in the pleadings. (7) Under the evidence, the referee erred in finding substantial damages in favor of the plaintiff.
Dickson & Smith for respondent.
The case was properly referred by the lower court. Ittner v. Exposition, 97 Mo. 568; Chambers v. Appleton, 84 N.Y. 649; Bank v. Owen, 101 Mo. 558; Edwardson v. Garnhart, 56 Mo. 81; Leavel v. Porter, 52 Mo.App. 632; Smith v. Haley, 41 Mo.App. 611; Nachtsheim v. Turner, 36 N.W. 637; Sutton v. Wegner, 74 Wis. 347.
This appeal has been transferred to this court by the St. Louis Court of Appeals, because the construction of section 28, article 2, of the Constitution of Missouri, 1875, is involved.
By that section "the right of trial by jury as heretofore enjoyed" is preserved "inviolate."
A jury was demanded and the appointment of the referee to try this case was contested at every step. We think the right to a jury was sufficiently claimed in the trial court and its denial was excepted to at every stage of the proceeding. State ex rel. Campbell v. Court of Appeals, 97 Mo. 276, 10 S.W. 874.
It follows that this court has jurisdiction because a construction of that provision of the Constitution of this State, guaranteeing a jury trial, was and is involved.
2. As early as the year 1845 it was provided by statute that "when it shall appear to the court that the trial of an action will require the examination of a long account on either side, such court may without consent make an order referring the cause to referees to hear and report their findings. R. S. 1845, chap. 136, sec. 24, p. 825. That provision was substantially preserved in the code of 1849, article 16, page 91, Laws of Missouri, 1849. In 1851, the constitutionality of article 16 of the code of 1849 was questioned in Shepard v. Bank of Missouri, 15 Mo. 143, and the Supreme Court unanimously held that it did not infringe upon the right of trial by jury and was not unconstitutional.
With the same constitutional guaranty in the Constitution of 1865, the same statutory provision was continued in the General Statutes of 1865, section 18, 169, page 674.
In Edwardson v. Garnhart, 56 Mo. 81, it was contended that if our statute, above quoted, providing for the reference of cases, was to be construed to include actions at law, the statute itself was unconstitutional and void. Wagner's Stats., p. 1041, sec. 18. But this court, through Judge Vories, answered that: "It is not to be presumed that the provision of the Constitution relied on was intended to change the law as it then existed and had been practiced in the State for a quarter of a century; the object of the framers of the Constitution must have been to preserve the right of trial by jury, as it then existed and had been practiced in this State, and not to establish a new rule of practice on that subject."
This, then, was the state of the law when the Constitution of 1875 was framed and submitted to the people of Missouri for adoption. As then understood and construed by the court of last resort in this State, neither the Constitutions of 1820 nor that of 1865 prohibited the courts from referring cases without the consent of either party in the cases mentioned in the statutes. The right to a jury trial then was modified to this extent by this power to appoint referees.
These references had been sanctioned by the statutes, and the opinions of the Supreme Court many years before that Constitution was framed, and when the people adopted it, they ratified the provision as to jury trial as it had been enjoyed previously thereto; that is to say, they adopted it with the construction already placed upon it; otherwise, the words "as heretofore enjoyed" are utterly meaningless. This is the construction placed upon the same provision in the Constitution of New York by the courts of that State. Lee v. Tillotson, 24 Wend. 337; Sands v. Kimbark, 27 N.Y. 147. The same conclusion was reached under similar circumstances by the Supreme Court of Wisconsin. Mead v. Walker, 17 Wis. 189; Cairns v. O'Bleness, 40 Wis. 469; Monitor Iron Works v. Ketchum, 47 Wis. 177, 2 N.W. 80.
So that both reason and authority concur in holding that where compulsory references were sanctioned and practiced in the State previous to the adoption of the Constitution, and the Constitution by its terms simply preserves the right of trial by jury as heretofore enjoyed, such a provision merely continues the right as it previously existed and does not deprive the courts of the power they possessed previous to the adoption of the Constitution of ordering or directing references in certain cases without consent. We are of opinion that the statute permitting references without consent, as construed prior to the adoption of the present Constitution, is not unconstitutional. See on this point, Wentzville Tobacco Co. v. Walker, 123 Mo. 662, 27 S.W. 639.
3. It remains only to determine whether the circuit court erred in holding that this was a case falling within the terms of the statute. To say in broad terms that "the whole subject of reference (under sec. 2138, R. S. 1889) is a matter of discretion" (Fitzgerald v. Hayward et al., 50 Mo. 516), is to announce that the circuit court's action in any given case is not open to review. We can not and do not subscribe to this statement of the law. It is true, as well held in that case, that the court need not refer a case, even if a long account is to be examined, but it does not follow that an erroneous reference may not be made under the ostensible authority of that statute. We hold it a matter to which either party may object at the time, and if his objections are overruled, may except. This is clearly the practice in this State. Callahan v. Shotwell, 60 Mo. 398; Young v. Powell, 87 Mo. 128.
In actions at law not involving the examination of a long account, and not coming within the terms of section 2138, Revised Statutes 1889, a reference can not be made without the consent of a party. In all actions at law not falling within the terms of section 2138, our bill of rights (sec. 28, art. 2, Const. of Mo.) secures to either party a trial by jury as a matter of right.
As to what constitutes an account within the meaning of section 2138, supra, it was held in Ittner v. St. Louis Exposition Company, 97 Mo. 561, 11 S.W. 58, that "an account is a detailed statement of the mutual demands in the nature of a debt and credit between parties, arising out of contract or some fiduciary relation." It was further held in that case that an itemized claim for damages growing out of a breach of a contract was properly referred, and Chambers v. Appleton, 84 N.Y. 649 was expressly approved. With these principles settled, let us apply them as best we may to the facts of this case.
The action is bottomed upon a written contract for furnishing ice during the year 1891. The petition sets out the contract in haec verba from which it appears that defendants agreed to furnish plaintiff during May, 1891, thirteen cars of ice of not less than eighteen and not more than twenty tons each. It then charges that an account rendered by defendants for ice for that month amounted to $ 705.53; that this was $ 38.63 in excess of what plaintiff was bound to pay defendants. The pleader then proceeds to aver the failure of defendants to furnish the ice according to contract for the months of June, July, August, September, October, and November, 1891, in these words:
Plaintiff further states that it has performed all of the terms and conditions by said agreement required to be performed on its part, and has at all times been ready and willing to comply with and perform all of the terms, provisions and conditions of said contract on its part to be complied with or performed; but that said defendants have failed and refused to perform their part of said agreement and comply with the terms, provisions and conditions of said contract, in this, that the said defendants have wholly failed and refused to furnish seventeen (17) of the twenty-six (26) cars of ice by them agreed to be furnished during the said month of June, and have wholly failed and refused to furnish any of the cars of ice which, under their said agreement, they agreed to furnish during the said months of July, August, September, October and November.
That by reason of the said failure on the part of defendants to furnish said ice as aforesaid, plaintiff was compelled to and did procure the said...
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