Edwardson v. Garnhart

• Decision Date: 31 March 1874
• Citation: 56 Mo. 81
• Parties: SAMUEL B. EDWARDSON, Respondent, v. JOHN H. GARNHART, Appellant.
• Court: Missouri Supreme Court

56 Mo. 81

SAMUEL B. EDWARDSON, Respondent,

v.JOHN H. GARNHART, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Cou.

Cline, Jamison & Day, for Appellants.

I. This being an action at law was for a jury, and defendant not consenting, to waiving a jury, was wrongfully referred. Under § 17, Art. I, State Const. there can be no compulsory reference of an action at law. (Townsend vs. Hendricks, 40 How. Pr., 143; Greene vs. Norris, 19 Cal., 140.)

II. There is no pretense that the referee was sworn as required by statute (Wagn. Stat., 147, § 30), or that the affidavit was waived. Hence, all the proceedings were illegal. (Webb vs. Huse, 38 Mo., 210; Tucker vs. Allen, 47 Mo., 488; Fassett vs. Fassett, 41 Mo., 516; Toler vs. Hayden, 18 Mo., 399; Frissell vs. Fickes, 27 Mo., 557; Valle vs. North Mo. R. R. Co., 37 Mo., 445.)

III. The referee should have found separately on each count. (Brownell vs. Pacific R. R., 47 Mo., 239; 19 Mo., 551; 36 Mo., 215; 41 Mo., 405; 45 Mo., 269.)

Krum & Patrick for Respondent.

VORIES, Judge, delivered the opinion of the court.

The petition in this case states, that in the year 1867, and for years before that time, the defendant was and had been engaged in the business of a merchant, in buying and selling liquors and other merchandize, in the City of St. Louis; that in January, 1867, he entered into an agreement with defendant whereby plaintiff undertook to give his personal services to the defendant, in and about his said business, for and during the year 1867, and that for such services the defendant agreed, by way of compensation for the plaintiff's services, to pay the plaintiff one-eighth part of the net profits made by said business during said year, less $1,000, which was to be deducted from the profits realized for the sale of Kelly's bitters. The plaintiff then avers a performance of the contract on his part; that the net profits made by said business for said year 1867 amounted to the sum of $50,000 and upwards; that the share of the profits to which plaintiff was entitled was $6,250 and upwards; that defendant had paid plaintiff at different times sums of money amounting in the aggregate to the sum of $1,400; that the defendant, though requested so to do, had refused to pay plaintiff any further sum, wherefore he sued, etc.

The plaintiff then, as a second cause of action, charges that he had a similar agreement with defendant for the year 1868, except that no deduction was to be made for the profits on the sale of bitters for that year; otherwise the second cause of action is similar to the first. The profits for the year 1868 are stated to be the sum of $60,000 and more, and that plaintiff has received the sum of $1,600 and no more, and judgment is prayed for one-eighth of the profits made after deducting the sum paid, etc.

The defendant's answer is a simple denial of the allegations of the petition.

The case was afterwards referred to one J. W. Luke, as referee, to hear the proof and state an account between the parties.

The referee, after notifying the parties of his intention to do so, proceeded to take the evidence in the cause; both parties appeared before the referee, and each produced witnesses who were examined and cross-examined by the respective parties, and the evidence reduced to writing. The referee afterwards filed the following report of his proceedings and of his findings in the cause, to-wit: “In obedience to the order of this court, referring the above entitled cause to me to hear the proofs, and state an account between the parties, (having been previously qualified) I caused the parties to be duly notified to appear before me, at my office, in the City of St. Louis, on the 23d day of January, A. D. 1872, as will appear by said notice hereto annexed. On said day the plaintiff and his attorney, and the defendant by his attorney, appeared before me, and I heard the proofs of the parties respectively, all of which I return herewith and make the same a part of my report. And I further report to the court, that from the evidence aforesaid I find and state the following, which, in my judgment, is a correct and just account between the parties, to-wit: I find that there is an actual amount due to the plaintiff by the books of the defendant, of $4,380.89, to which should be added the sum of $455.08, charged to the plaintiff as his interest in the balance of account due by Edgar J. Noe, and also the sum of $359.36, being the one-eighth of the sum of $2,874.91, charged as discount and interest and included to the debit of merchandise account for the years 1867 and 1868, making a total sum of $5,195.32. And I further report that the sum before mentioned, $5,195,32, was due to plaintiff on February 1, 1869, and that plaintiff is entitled to interest on the same from that date to February 6, 1872, the day on which the hearing was closed, amounting to $940.35, which added to $5,195.32 makes a total of $6,135.67, which last named sum I find and report to be due from the defendnt to the plaintiff.”

The report further proceeded to state that the amount found to be due the plaintiff did not include his interest in some suspended debts named, &c. The defendant filed various objections and exceptions to the report of the referee. These exceptions were heard by the court and overruled, to which the defendant excepted.

The court afterwards rendered a judgment on the report in favor of the plaintiff for the sum of $6,176.57, the amount found to be due by the referee. The defendant in due time filed his motion for a new trial, setting forth the same grounds set forth in his exceptions to the report of the referee. The court overruled this motion and the defendant again excepted and appealed to the general term of the St. Louis Circuit Court, where the judgment being affirmed he appealed to this court.

The grounds of objection relied on in this court by the defendant, for the reversal of the judgment of the St. Louis Circuit Court are, first, that the court improperly referred the cause to a referee to take an account between the parties without the consent of the defendant; second, that the referee was not sworn as the statute requires before hearing the case; third, that the referee found a gross amount as due the plaintiff in the whole case, but made no separate finding on the separate counts in the petition; fourth that the referee improperly found the sum of $455.07, which was charged to the plaintiff as his part of the balance of account charged to Edgar J. Noe, who was dead; fifth, that the referee committed error in allowing to the plaintiff the sum of $359.36, being one-eighth of the sum of $2,874.91, on the ground that the same had been overcharged to the plaintiff in his account, as interest for money borrowed and used by defendant in his business for the year 1867, and sixth, that the referee erred in allowing plaintiff interest on his account after February, 1869.

These objections will be examined in the order in which they have been stated:

1. It is contended that the constitution provides that the right of trial by jury shall forever remain inviolate, and that this action being an action at law, the defendant had the right to have the questions of fact involved therein tried by a jury; that if our statute providing for the reference of cases is to be construed...