Edmisten v. Dousette
| Decision Date | 19 April 1960 |
| Docket Number | No. 7788,7788 |
| Citation | 334 S.W.2d 746 |
| Parties | J. E. EDMISTEN, Plaintiff-Appellant, v. Ralph DOUSETTE and Hillary Dousette, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Graves & Graves, Neosho, for plaintiff-appellant.
John D. Kelly, Seneca, for defendants-respondents.
Intertwined in this hurrah's nest of litigation are (a) the claim of plaintiff, J. E. Edmisten, in the sum of $99.67 for old lumber from a razed barn which was furnished to defendants, Ralph A. and Hillary Dousette, who are husband and wife, and (b) defendants' counterclaim in two counts. In the first count, defendants charged that plaintiff 'was indebted' to them (1) for four items having an aggregate 'value' of $34.70 (including a linoleum floor cover at $9.60, sand and gravel at $7.10, paint and wallpaper at $15, and a toilet flange at $3), to which items we hereinafter refer collectively as the repair items, (2) for one pair of leather work boots valued at $7, (3) for three items having an aggregate 'value' of $66.80 (including 50 bales of milo hay valued at $37.50, 43 shocks of sorgo valued at $25.80, and 100 pounds of mineral salt valued at $3.50), to which items we hereinafter refer collectively as the feed items, it being alleged that the repair items, the work boots and the feed items were 'furnished to the plaintiff by defendants at the request of plaintiff,' (4) 'in the sum of $29.00, which sum was paid by the defendants for electricity, and which the plaintiff agreed to repay to defendants,' and (5) for defendants' labor 'of the reasonable value of $375' for a period of three months in feeding, tending and caring for plaintiff's livestock and in cultivating and planting 'at the request of the plaintiff.' The values assigned to the items in the first count aggregated $512.50, but the prayer of that count was for $509.50. (All emphasis herein is ours.) In the second count of their counterclaim, defendants pleaded an 'indecent attack and assault' by plaintiff upon defendant Hillary, for which actual damages of $2,500 and punitive damages of $10,000 were sought. Out of the welter of charges and countercharges, affirmations and denials, laid in this nest of pleadings, the jury hatched a brood of three verdicts, to-wit, (1) for plaintiff in the sum of $50 upon his petition, (2) for defendants in the sum of $500 upon the first count of their counterclaim, and (3) for defendants in the sum of $250 upon the second count. The judgment of $50 upon plaintiff's petition stands without complaint, but plaintiff has appealed from the judgments against him on both counts of the counterclaim.
The pertinent facts, pieced together around many blind spots in the record, follow. Plaintiff owned a farm (its location not fixed and its acreage not given), on which there was 'a rock house' (its size and state of repair not disclosed). Desiring a tenant for his farm, plaintiff advertised 'for a disabled veteran to work on the farm.' Defendants (their ages and physical condition not shown) answered the advertisement and shortly moved onto the farm. According to plaintiff, defendants read the written contract (not identified or offered in evidence) between plaintiff and a former tenant and then agreed 'our deal would be on those terms too * * * well, maybe not word for word, but our deal would be based on that contract.' Defendants' version of their loose understanding with plaintiff (which we hereinafter dignify by referring to it as 'the original agreement') is exemplified by defendant Ralph's running recital that 'he (plaintiff) was to sell (his) Black Angus cows, machinery, sheep, and supposed to buy me (Ralph) from ten to fifteen head of milk cows to make a living with, and the milk check was to be mine and any increase of sheep or cattle and of crops was supposed to go to him, and anything he might spend would come out, and anything left over would be paid on the principal, and the whole principal, not including the milk cows, totaled up around $16,000.' Attempting oversimplification of the original agreement, defendants' counsel writes that, 'as nearly as it may be interpreted from the testimony,' it was 'that defendants were to purchase, by their labor, the livestock and machinery owned by plaintiff.' Whatever the original agreement may have been, it was entirely oral although one of the few points upon which the parties were in complete accord at the trial was that the original agreement was to have been reduced to writing. Quickly adverting to their adversary stations, plaintiff charged that defendants repeatedly refused to accompany him to the office of his attorney in Carthage 'to sign the written contract,' while defendants insisted that they expectantly waited for plaintiff 'to produce' a written contract but that he never did so. In any event, no written contract was executed--'it was all just talk.'
Defendants' position has been, and still is, that plaintiff breached the original agreement by failing to furnish defendants with 'ten to fifteen head of milk cows to make a living with' and by failing to enter into a written contract, all of which was 'supposed to be taken care of before the first of the year' of 1958. On appeal, defendants' counsel also suggests that the original agreement was breached by plaintiff's alleged indecent assault upon defendant Hillary on January 6, 1958. Passing the legal frailties of this novel but unpersuasive argument, it will suffice to point out that defendant Ralph insisted upon trial that, because of plaintiff's alleged failure to do what 'he was supposed to do * * * before the first of the year,' the original agreement 'did not extend over' and 'meant nothing' after January 1, 1958.
Defendant Hillary said that the alleged indecent assault by plaintiff upon her person occurred while she was alone in her home on the morning of Monday, January 6, 1958. As described in her language, plaintiff When defendant Ralph (then employed elsewhere) returned home that evening, Hillary told him 'what had happened.' Ralph moved his family off plaintiff's farm the following weekend. Both defendants readily admitted that they had presented no claim to plaintiff prior to his institution of suit on April 10, 1958, because, as Ralph Said, 'I was willing to let it lay, just let it go, until he brought suit against me, and then after that I was not willing to let it lay by no means.' Furthermore, Ralph explained that he 'didn't want to bring my wife into court'--'she is under the doctor's orders right now'--'she had been through enough, and I decided to just let it all go.' Defendant Hillary observed tersely that, after the alleged assault upon her, 'we wanted nothing more to do with him (plaintiff) in any way.'
In the single point directed to the first count of the counterclaim, plaintiff-appellant asserts that the verdict for $500 on that count was 'excessive in its entirety, because there was no evidence to warrant such a finding and the verdict was clearly against the law and evidence'; and, in the single point directed to the second count, it is urged in similar vein that the verdict for $250 on that count was 'excessive in nature and * * * was against the law and evidence.' Assignments in a motion for new trial in a jury-tried case that verdicts are against the law and the evidence present nothing for consideration in the trial court and preserve nothing for appellate review, 1 and like points in an appellate brief in a jury-tried case are just as inadequate, ineffectual, futile and meaningless. 2 Furthermore, on the record before us, plaintiff is in no position to contend here that a submissible case was not made on either count of the counterclaim, for he did not move for a directed verdict on either count at the close of all of the evidence, made no objection to the giving or refusal of any instruction, and joined voluntarily in submission of the counterclaim. There are many holdings that, in such circumstances, the submissibility of a jury-tried case is not an open question on appeal. 3 Since there was no objection to any verdict-directing instruction 4 and since consideration of the submissibility of the counterclaim is neither invoked nor justified under Supreme Court Rule 3.27, 42 V.A.M.S. [see Millar v. Berg, Mo., 316 S.W.2d 499, 502-503(3)], we need not concern ourselves with submissibility. However, for reasons hereinafter discussed, we are constrained to agree with plaintiff that the verdict on the first count of the counterclaim was excessive.
The ten items listed in count one have been classified in defendants' brief (and we think properly so) in two broad categories thus defined in the language of defendants' counsel, i. e., (1) items 'for which defendants would have been paid 5 except for the fact that plaintiff breached the (original agreement) * * * and rendered impossible further performance by defendants' and (2) 'materials and commodities furnished to plaintiff by defendants upon plaintiff's assurance that he would reimburse defendants' therefor. In the first category, defendants' counsel has placed the feed items which (as hereinbefore listed in the first paragraph of this opinion) aggregate $66.80, the item of $29 for electricity, and defendants' labor 'of the reasonable value of $375'; and, in the second category, the repair items aggregating $34.70 and the item of $7 for work boots.
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