Gipson v. Fisher Bros. Co.

Decision Date24 June 1947
Docket NumberNo. 6661.,6661.
PartiesGIPSON v. FISHER BROS. CO.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Scott County; James C. McDowell, Judge.

Action by Bert Gipson against Fisher Brothers Company to recover the reasonable value of work and labor performed. From a judgment setting aside a verdict in favor of plaintiff, directing a verdict for defendant and rendering judgment for defendant thereon, plaintiff appeals.

Judgment reversed and cause remanded with directions.

C. A. Powell, of Dexter, for appellant.

Bailey & Bailey, of Sikeston, Stephen Barton, of Benton, and Finch & Finch, of Cape Girardeau, for respondent.

FULBRIGHT, Presiding Judge.

Appellant, hereinafter referred to as plaintiff, filed his petition July 22, 1945, in the Circuit Court of Scott County seeking to recover from the respondent, hereinafter referred to as defendant, $25,000, alleged to be the reasonable value of work and labor performed.

The petition is in conventional form and alleges that the work and labor consisted of such work necessary to be done in preparing and sowing approximately 603 acres of defendant's land to alfalfa in 1940 and 1941; that it was necessary to remove stumps and fill in stump holes over 580 acres, work down ditch banks with a bulldozer, dig ditches through the land and grade roads thereon.

Defendant's amended answer admits owning the land and that plaintiff was its tenant; that he prepared the land and sowed same to alfalfa, but denies that it agreed to pay therefor. It alleges that the work performed by the plaintiff was as defendant's tenant under an agreement to receive one half of the alfalfa while a tenant on said land; that the plaintiff received one half of the alfalfa while he was such tenant; and further alleges that in an unlawful detainer action, instituted by defendant in 1943, plaintiff contended he had the right to remain on the land because of his interest in the alfalfa growing on said land and that because of an adverse decision of this court in that case (Fisher Brothers Co. v. Gipson, Mo.App., 176 S.W.2d 874) the defendant's rights were adjudicated and pleads res adjudicate. Defendant further alleges that plaintiff received certain payments from the Government in the nature of soil conservation payments and that plaintiff is estopped from recovering for work and labor done and pleads final settlement and accord and satisfaction.

By his reply plaintiff admits that there was an oral agreement between the parties whereby the plaintiff was to receive one half of the alfalfa and the proceeds therefrom for the work done by plaintiff in preparing the land and sowing it to alfalfa, so long as the alfalfa should remain and grow on said land. He alleges that he received his one half in 1941 and 1942 for the 23 acres planted in 1940 and that he received his one half in 1942 from 580 acres planted in 1941. He admits the unlawful detainer action was determined in defendant's favor but alleges that the plaintiff was at all times ready and willing to remain on said land and fully perform all he agreed to do in connection with the alfalfa. He alleges that the oral agreement between plaintiff and defendant was within the Statute of Frauds and alleges that the alfalfa will continue to grow for several years and that it has continued to be productive but that the plaintiff has received no portion thereof and no proceeds therefrom since 1942.

Upon a trial of the cause, at the conclusion of the evidence, defendant filed a motion for directed verdict which was overruled by the court and the cause submitted to the jury, which returned a verdict in favor of plaintiff in the sum of $7,500. Thereafter, defendant filed his motion for a directed verdict and in the alternative for a new trial. The trial court sustained defendant's motion for a directed verdict, set aside the judgment and verdict rendered by the jury, directed a verdict and rendered judgment for the defendant. Thereupon plaintiff filed his motion for a new trial and to reinstate the verdict of the jury which, omitting caption and signatures, is as follows:

"Comes now the plaintiff, after the Court has sustained the motion of the defendant for a directed verdict and rendered a verdict and judgment in favor of the defendant in this cause, and moves the Court to grant him a new trial from its action in sustaining said motion and in rendering judgment in favor of the defendant and in setting aside the verdict of the jury, and further moves the Court to re-enter the verdict of the jury in favor of the plaintiff and to render judgment on said verdict in favor of the plaintiff, for the following reasons:

"1. The court erred in setting aside the verdict of the jury.

"2. The court erred in sustaining the motion of the defendant and in rendering judgment in favor of the defendant.

"3. There is no evidence to support the action of the court.

"4. The evidence in the case supported the verdict of the jury.

"5. The law applicable to this case supports and justifies the verdict of the jury in favor of the plaintiff."

Thereafter, on the same date, the record states as follows:

"Now, on this day in open Court, comes Plaintiff by C. A. Powell, his Attorney, and files Motion for a New Trial on account of Court's action in Setting Aside Verdict and Judgment, and rendering directly for the Defendant according to the Directed Verdict, whereupon this Motion is now taken up and submitted to the Court and is by the Court overruled.

"It is, therefore, the order of the Court, that the Motion for a New Trial, be and is hereby overruled."

Plaintiff then filed his Notice of Appeal and the cause was duly appealed to this court, which has appellate jurisdiction upon the ground that the amount of the verdict is the amount in dispute. Deaver v. St. Louis Public Service Co., Mo.App., 199 S.W.2d 83; State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984; Williams v. Atchison, T. &. S. F. R. Co., 233 Mo. 666, 136 S.W. 304; Culbertson v. Young, 156 Mo. 261, 56 S.W. 893; Ashbrook v. Willis, 338 Mo. 226, 89 S.W.2d 659; Vanderberg v. Kansas City, Mo., Gas Co., 199 Mo. 455, 97 S.W. 908. From the whole record it appears that plaintiff's sole objective, on appeal, is to have the verdict of the jury reinstated and judgment rendered thereon. It is obvious, therefore, that the total amount involved on the appeal is not in excess of $7,500.

The evidence shows that Leo Fisher is the president and managing officer of defendant corporation; that plaintiff was a tenant on approximately 2000 acres of defendant's land for several years prior to 1940, under oral agreements whereby plaintiff paid crop rent on all crops raised by him; that the land was planted to cotton, corn and beans and the work performed by plaintiff was the general work of a tenant; that in 1940, or the spring of 1941, the defendant, desiring to seed 1000 acres to alfalfa, entered into a special oral agreement with plaintiff, by its president and general manager, Leo Fisher, whereby it contracted to furnish approximately 603 acres of land and seed and the plaintiff was to prepare it for planting and plant the same to alfalfa for one half the crop or the proceeds therefrom for as long as it stood; that Leo Fisher and his wife individually owned an alfalfa mill; that the mill was to cut so much of the alfalfa as it could use at its expense, and the remainder, if any, was to be harvested and bailed by plaintiff, defendant to pay for one half of the bailing; that in pursuance of said agreement, and at the special instance and request of defendant, the plaintiff prepared and planted 23 acres in 1940, and 580 acres in 1941; that the work performed by plaintiff pursuant to said agreement consisted of removing stumps from about 480 acres of land, piling and burning the stumps and filing the stump holes, cutting 550 acres of corn stalks, discing over the 603 acres with a tandum disc before breaking or bog-discing, breaking some of the land and using a bush and bog disc twice on the remainder and then again discing over the land three times; rolling it three times, seeding it twice crossways with a wheelbarrow seeder and then again rolling it both ways; clipping the weeds three or four times; ditching it at a cost of $500 and spreading about 900 tons of lime; that plaintiff performed all the above work at his own expense and furnished all labor, tools and machinery. In the fall of 1941, at Fisher's request, plaintiff worked and replanted 225 acres, doing the same work as formerly except removing stumps and filling stump holes; that the reasonable value of labor on each acre where it was necessary to remove stumps was $30 to $35, and on each acre where it was not necessary to remove stumps was $23 to 24; that each year after the year of the planting there were from three to seven cuttings of the alfalfa; that in the fall of 1942 the plaintiff was notified by defendant to move from the premises; and on account of an unlawful detainer suit having been brought against plaintiff by defendant the plaintiff did move from said premises in the early part of 1943; that he has received no portion of the alfalfa or proceeds therefrom since 1942; that there was a good stand of alfalfa on the 603 acres when the plaintiff moved off the land; that the alfalfa continued to grow in 1943 and 1944 and defendant got all the proceeds during those two years; that alfalfa usually grows for four or five years, but a large part of it drowned out in 1945. In 1941 plaintiff prepared the ground and planted 100 acres in alfalfa for the defendant individually, doing the same work as on the 603 acres except that no stumps were removed; that defendant paid plaintiff $20 per acre therefor

According to plaintiff's evidence the agreement was that the defendant was to furnish the land and the seed and the plaintiff was to furnish the tools and do the work and have a one-half interest in...

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8 cases
  • Gipson v. Fisher Bros. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • 24 Junio 1947
    ...204 S.W.2d 101 GIPSON v. FISHER BROS. CO No. 6661Court of Appeals of Missouri, SpringfieldJune 24, C. A. Powell, of Dexter, for appellant. Bailey & Bailey, of Sikeston, Stephen Barton, of Benton, and Finch & Finch, of Cape Girardeau, for respondent. OPINION FULBRIGHT [204 S.W.2d 102] Appell......
  • Austin & Bass Builders, Inc. v. Lewis, 49168
    • United States
    • United States State Supreme Court of Missouri
    • 16 Julio 1962
    ......Blair, 352 Mo. 476, 178 S.W.2d 322, 325; Jesse v. O'Neal, 364 Mo. 333, 261 S.W.2d 88, 90; Gipson v. Fisher Bros. Co., Mo.App., 204 S.W.2d 101, 105; Marshall Realty Co. v. Zerman, Mo.App., 296 S.W. ......
  • Sulgrove v. Sulgrove
    • United States
    • United States State Supreme Court of Missouri
    • 13 Diciembre 1948
    ......        The judgment should be and is affirmed. ---------------. Notes:. 1. Gipson v. Fisher Bros. Co., Mo.App., 204 S.W.2d 101, 108; Parker-Washington Co. v. Dennison, 249 Mo. 449, ......
  • Sulgrove v. Sulgrove
    • United States
    • United States State Supreme Court of Missouri
    • 13 Diciembre 1948
    ...... . .          Leedy,. J., Absent. . . ---------. . . Notes:. . . [1] Gipson v. Fisher Bros. Co. (Mo. App.), 204 S.W.2d 101, 108; Parker-Washington Co. v. Dennison, 249 Mo. ......
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