Dooley v. Barker

• Decision Date: 06 June 1876
• Parties: SILAS W. DOOLEY, Respondent, v. JOHN BARKER, Appellant.
• Court: Missouri Court of Appeals

2 Mo.App. 325

SILAS W. DOOLEY, Respondent, v. JOHN BARKER, Appellant.

Court of Appeals of Missouri, St. Louis.

June 6, 1876

Where the trial of an issue of fact requires the examination of an account, it is error to refer it, against the objection of one of the parties, where the account is clearly not a long one.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

Blakeman & Thayer, for appellant, cited: Edwardson v Garnhart, 56 Mo. 81; Wag. Stat. 1041, sec. 18; Swift v. Wells, 2 How. Pr. 79; Miller v. Hooker, 2 How. Pr. 171; Stewart v. Elwele, 3 Code R. 139; McCullough v. Brodie, 11 How. Pr. 346; s c., 6 Denio 659; Harris v. Mead, 16 Abb. U. S. 257; Dickinson v. Mitchell, 19 Abb. U. S. 286.

E. W. Pattison, for respondent, cited: Williams v. Allen, 45 Mo. 573; Whitswell v. Willard, 1 Metc. (Ky.) 216; Silmeer v. Redfield, 19 Wend. 21; McMaster v. Booth, 2 Code R. 111; Martin v. Hall, 26 Mo. 389; Robson v. Jones, 33 Tex. 324; Fitzgerald v. Hayward et al., 50 Mo. 516; Martin v. Hall, 26 Mo. 386; Edwardson v. Garnhart, 56 Mo. 81; Sambler v. Mechanics' Fire Ins. Co., 1 Hall 560; Bowman v. Sheldon, 1 Duer 607.

OPINION

BAKEWELL J.

This is an action brought by an attorney against his client, for professional services.

With the petition is filed a bill of particulars, dated May 1, 1874, and containing no other date, and embracing eight items, as follows:

To examination of title of Thomas' lands $ 30.00

To consultations as to ability to make judgment out of Thomas 50.00

To injunction to prevent sale under Fitzgerald deed of trust 50.00

To consultation and services as to sale of property held by Barker 50.00

To making list of Thomas' property and incumbrances 50.00

To filing attachment against Thomas, drawing papers, bond, etc 50.00

To services in suit of Barker v. Thomas 50.00

To obtaining warrant against Thomas, securing his arrest, and conducting prosecution against him in Court of Criminal Correction 50.00

$380.00

Credit by cash 40.00

Balance due $340.00

The answer denied that plaintiff has been employed to render the services charged for; denied the reasonableness of the charges, and said that, for all services rendered to defendant by plaintiff, he has been paid in full, save the sum of $25, which defendant admitted to be due.

Against the objection of appellant, the cause, on the application of respondent, was, when reached for trial in the Circuit Court, referred to a referee for a trial of all the issues. The referee reported a balance of $85 due to plaintiff. Exceptions were filed to the report of the referee, by the respondent, which were overruled, and the report confirmed and judgment entered for plaintiff; and, a motion for a new trial being overruled, the cause is brought before us by appeal.

The only point upon which appellant insists, before us, is that it was error in the Circuit Court to refer the cause against his objection.

The statute authorizes the court (Wag. Stat. 1041, § 18) to direct a reference, where the parties do not consent, where the trial of an issue of fact shall require the examination of a long account on either side.

An account has been defined to be " a detailed statement of mutual demands in the matter of debit and credit between parties, arising out of contract or some fiduciary relation." The learned judge who delivers the opinion of the court in McWilliams v. Allan, 45 Mo. 574, accepts the definition as accurate. If so, the bill of particulars in this case is not an account at all, because the demands are not mutual. Barker has no demand against Dooley, and nothing appears in the bill of particulars to show that he ever had any demand against him. He paid $40 on account of his bill, and gets credit for it.

But, granting that that was an account in the strictest sense of the word, was it a long account?

In New York, under a like statutory provision, this question came up again and again; and there can be no doubt that an account such as this, consisting of eight items, which really seem to be only three items, at most, split up into unnecessary subdivisions, with one entry of a credit for money paid on account, would be held, in New York, not a proper subject for a reference, in the absence of consent. 16 Abb. Pr. 257. Dickinson v. Mitchell, 19 Abb. Pr. 286, was a case of attorney against client. The bill of particulars had five distinct charges on the debit side, and one item on the credit side. The Supreme Court, at general term, held this not an account, in the legal sense of the term, and that, if it were an account, it was not a long account, and...