Flesh v. Christopher

• Decision Date: 28 February 1882
• Citation: 11 Mo.App. 483
• Parties: M. M. FLESH ET AL., Respondents, v. JACOB CHRISTOPHER, Appellant.
• Court: Missouri Court of Appeals

11 Mo.App. 483

M. M. FLESH ET AL., Respondents,

v.JACOB CHRISTOPHER, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 28, 1882.

1. A justice's docket-entry which shows the dismissal of the case after it is taken under advisement, is incompetent as evidence of a former judgment in bar of a second action, though accompanied with an offer to show by oral testimony that the decision was on the merits, and involved the same issues as the second action.

2. Where, on trial anew in the circuit court, it appears that the finding of the justice was necessarily decisive against a counter-claim which applies to the transaction out of which arose the plaintiff's claim, and which is in excess thereof, the judgment will not be reversed because there was no special finding upon the counter-claim.

3. In the absence of any evidence as to the general powers of an architect, it will be assumed that he has the power, as agent of the owner, to waive the right of the owner to make a reclamation for work omitted to be done by the contractor.

4. An appellate court must, where material error to the prejudice of the appellant has been committed, remand the cause, however insignificant the sum in controversy.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Reversed and remanded.

KLEIN & FISSE, for the appellant: Parol proof was properly admissible to show what was actually in controversy between the parties before Justice Cunningham, and the grounds on which his judgment was rendered. This is expressly so held in-- Doty v. Brown, 4 Comst. 71, 75; Bottorff v. Wise, 53 Ind. 32, 35; Sturtevant v. Randall, 53 Me. 149, 154. “In proceedings in justices' courts forms are disregarded, and it is not expected that entries should be made with the accuracy and precision which are required in recording the acts of courts of record.”-- Fraude v. Owens, 25 Mo. 329, 334; Morse v. Brownfield, 27 Mo. 224; Hazeltine v. Rensch, 51 Mo. 50; Flanagan v. Hutchinson, 47 Mo. 237. There should have been a finding upon the counter-claim.-- Jones v. Snedecor, 3 Mo. 390; Pratt v. Rogers, 5 Mo. 51. Where the jury have not rendered a distinct verdict on a claim set up by the defendant in reconvention, the case will be remanded for a new trial.-- Collins v. Graves, 13 La. An. 95; Schweickhardt v. St. Louis, 2 Mo. App. 571; Danaher v. Ward, 40 Mich. 300. Under the facts of this case, there can be no doubt that the defendant's claim is properly presented as a counter-claim.-- Hay v. Short, 49 Mo. 139; McAdow v. Ross, 53 Mo. 199; Ritchie v. Haywood, 71 Mo. 560.

FINKELNBURG & RASSIEUR, for the respondents: Counter-claims cannot be filed before a justice of the peace. His jurisdiction is limited to set-off.--Rev. Stats., sects. 2916, 2917. Set-off applies to mutual debts, and they must be liquidated.--Rev. Stats., sect. 3867; Johnson v. Johnson, 16 Mo. 494; The State v. Elbridge, 65 Mo. 584; Green v. Barrel Co., 1 Mo. App. 202. It differs from a counterclaim, which is much broader.--Rev. Stats., sect. 3522; Gordon v. Bruner, 49 Mo. 57; McAdow v. Ross, 53 Mo. 199.

BAKEWELL, J., delivered the opinion of the court.

This action was begun before a justice of the peace for a balance claimed to be due for painting and glazing defendant's house, under a written contract. The amount claimed was $5.30. On appeal and trial anew in the circuit court the judgment was for plaintiffs.

The itemized account filed with the justice was as follows:--

1877.

Sept. 22.

To painting, graining, and glazing residence, as per contract

$682 00

Oct. 31.

Extra work, painting on wire fence

3 30

$685 30

Sept. 13.

By cash on account

$400 00

Sept. 28.

By cash on account

250 00

Nov. 30.

By allowance

30 00--680 00

Balance due

$5 30

Defendant filed before the justice, as a counter-claim, the following account:--

“For omitting to paint and glaze two windows in defendant's house, which, by your contract, you were required to paint and glaze

$14 00”

There is a great conflict of testimony.

Plaintiffs entered into a contract to paint and glaze defendant's house according to plans and specifications, for $682. Beinke was the architect and superintendent employed by defendant in the erection of the house. Plaintiffs received several payments on account, on the orders of Beinke. Two windows were, in building the house, omitted from the original plan. When plaintiffs, having, as they claimed, completed the work, presented their final bill to Beinke for approval, Beinke insisted that the windows omitted from the house must be deducted. There was evidence on the part of defendants that it was a custom of the trade not to charge for work omitted, during the progress of the building, from the original plan. The painting and glazing of the windows would have been $14. The bill as presented showed a balance due of $35.30. Flesh claimed that he had done extra work and, according to his testimony, it was then agreed between him and Beinke that the extra work should be paired off against the work omitted on the windows. Beinke denies that there was any such conversation. Beinke approved the bill in writing for the balance claimed, of $35.30. Flesh presented the bill so approved to Christopher, who reminded Flesh that he had himself selected and paid for two lights, with which he was charged in the bill. This, Flesh admitted to be an error, and $30 was deducted, leaving the bill as it was filed before the justice, the balance being $5.30, which Flesh swears defendant then and often since promised to pay. Defendant denies that any such promise was made.

The court gave the following instructions at the instance of plaintiffs:--

“1. If the jury believe from the evidence that plaintiffs were at all times ready to paint and glaze the two windows mentioned in defendant's counter-claim, but that they did not or could not paint or glaze the same, because said windows were altogether left out of the building by the defendant himself, or his architect and builders, without any fault on part of plaintiffs, then defendant cannot recover on his counter-claim.

2. If the jury believe from the evidence that plaintiffs did extra work upon the house of defendant not charged for in the account sued on, that after the completion of the work plaintiffs and the superintendent and architect of defendant agreed that plaintiffs would make no extra charge for such extra work, in consideration whereof defendant would make no deduction on account of the two windows which were not painted and glazed, then defendant is not entitled to recover on his counter-claim.

3. If the jury believe from the evidence that plaintiffs did the work embraced in the account sued on, that the balance claimed on account of the original contract still remains unpaid, and that the painting of the wire fence is reasonably worth the amount charged therefor, then the jury will find for plaintiffs in the amount claimed in their account, with interest from October 4, 1878.”

For defendant the court gave the following instructions:

“1. If the jury finds and believes from the evidence that by agreement between plaintiffs and defendant the painting and glazing of two windows included in the contract as part of the work to be done by said plaintiffs on defendant's house were omitted, and if the jury further finds that the reasonable value of said work and materials so omitted was to be deducted from the contract-price, then in arriving at a verdict the jury must give the defendant credit against plaintiffs for the value of said work and materials, and if said value exceeds the sum of $5.30, the jury should find for the defendant.

2. If the jury finds from the evidence that there was a custom in relation to omitted work, as indicated in the other instructions of the court, and that two windows were omitted from the house which were included in the contract between plaintiffs and defendant, then the jury should find for the defendant on his counter-claim such sum as they may find from the evidence was the reasonable value of such two windows.

3. The court instructs the jury, that if the jury believes from the evidence that at the time of the making of the contract for the painting and glazing of defendant's house there was a general and well-understood custom and rule among builders, architects, and painters, that the value of work included in the contract but omitted in the erection or finishing of a house is to be deducted from the contractprice of said work, then such custom and rule enters into and forms a part of the contract between the parties, with the same effect as if the same were inserted specifically therein.”

1. When this case was here before, the judgment of the circuit court, which was then for defendant, was reversed, on the ground that a transcript of proceedings before a justice had been improperly admitted on the trial. Before commencing this action plaintiff had filed the same claim, and defendant the same counter-claim, before another justice. It appeared from the docket entries, that after taking the case under advisement, that justice dismissed plaintiff's cause of action, and permitted defendant to withdraw his set-off. This transcript was again offered in evidence on the trial now under consideration, and, in connection with it, defendant offered to show by oral testimony that that case involved the same matters in issue here, and that the decision was on the merits. All this testimony was excluded by the trial court. The trial court only followed the former ruling of this court in excluding all this...