Griggs v. Deal

• Decision Date: 27 March 1888
• Citation: 30 Mo.App. 152
• Parties: NATHAN M. GRIGGS, Respondent, v. HENRY J. DEAL, Appellant.
• Court: Missouri Court of Appeals

30 Mo.App. 152

NATHAN M. GRIGGS, Respondent, v. HENRY J. DEAL, Appellant.

Court of Appeals of Missouri, St. Louis.

March 27, 1888

APPEAL from the Mississippi Circuit Court, HON. MARSHALL ARNOLD Special Judge.

Affirmed.

J. J RUSSELL, for the appellant: It is fundamental that a plaintiff cannot recover for anything beyond that sued for or not embraced in his pleadings. White v. Chaney, 20 Mo.App. 389; Phleger v. Weltner, 21 Mo.App. 581; Kemp v. Foster, 22 Mo.App. 643. The court permitted the plaintiff to state that he saw a telegram from defendant requesting the company to withhold part of the order. This was hearsay evidence and clearly incompetent. It was conceded on the trial by defendant that the order referred to was a draft or bill of exchange, as shown by the last instruction, of which the defendant complains. Protest was, therefore, necessary to hold the drawer, who is defendant herein. It was not protested for months after, which was an unreasonable delay. Dyas v. Hanson, 14 Mo.App. 363. If plaintiff could have collected the order and failed to do so, and the company became insolvent, and the amount was in the meantime charged to the defendant and never collected by him, the loss should justly fall upon plaintiffs. Boyer v. Hamilton, 21 Mo.App. 520. The verdict and judgment in this case were erroneous, for the reason that it was a general verdict, upon two separate and distinct causes of action stated in two separate counts in plaintiffs' petition. A general verdict in such a case cannot stand. The court's attention was called to this erroneous verdict in defendant's motion in arrest, and the judgment should have been arrested. Owens v. Railroad, 58 Mo. 386; Sturgeon v. Railroad, 65 Mo. 569.

BOONE & CANTWELL and ROBERT WAIDE, for the respondents: The evidence clearly justifies a verdict for plaintiffs, and even though the trial court may have admitted improper testimony, if it was not injurious to the party complaining, the judgment will not be reversed for that cause. Martin v. Martin, 27 Mo. 227; Lesinsky v. Dispatch, 14 Mo.App. 598; Auction Co. v. Mason, 16 Mo.App. 473. There is no doubt that the verdict should have been upon each count separately, but the appellant cannot now complain of that error. He should have set it out specifically in his motion in arrest, and called the attention of the trial court to the error. This he did not do. He simply says that " the judgment is erroneous and void." Biglow v. Railroad, 48 Mo. 512; Fickle v. Railroad, 54 Mo. 219; Sweet v. Maupin, 65 Mo. 65; Erdbruger v. Meier, 14 Mo.App. 259; Owens v. Railroad, 58 Mo. 391; Sturgeon v. Railroad, 65 Mo. 569. The only instruction complained of by appellant is number four, given for respondents. This instruction presented the law correctly. Salisbury v. Renick, 49 Mo. 558; Dorsey v. Watson, 14 Mo. 59.

OPINION

THOMPSON J.

Nathan M. Griggs and R. J. Smith were partners in doing the work for which this action is brought. Smith died, and Griggs was appointed administrator of the partnership estate. He brings this action in his personal character, and also as such administrator.

The petition contains three counts: (1) A count upon an order or draft for the sum of eight hundred dollars; (2) a count for the sum of $2,433.15, due under a contract with the defendant for excavating sixteen thousand two hundred and twenty cubic yards of dirt on the roadway of the Texas & St. Louis Railroad; (3) for work and labor done at the request of the defendant in clearing timber on the right of way of said railway, for which judgment is asked in the sum of $35.95. The court sustained a motion compelling the plaintiff to elect between the first and second counts, and he elected to abandon the first count.

The answer admits the doing of the work as alleged in the second count, but asserts that the contract price was fourteen and not fifteen cents per cubic yard, and claims that the amount due therefor was fully paid. It sets up as a special defence that, in payment for said work, the defendant drew and delivered to Smith & Griggs a certain draft or bill of exchange on the paymaster of said railroad company, due and payable on demand, which Smith & Griggs could, by ordinary diligence, have collected, but that they failed to present the same in a reasonable time, and failed to give the defendant any notice of its presentation and non-payment; and that the railroad company soon after became insolvent, whereby the payment of the draft was prevented. The answer to the third count was a general denial. There was also a counter-claim, which dropped out of view at the trial and need not be considered.

I. As to the question of the price at which the excavating was to be done, the plaintiffs' evidence tended to show that the agreed price was fifteen cents per cubic yard, and the defendant's evidence tended to show that a part of it was to be fourteen and the rest fifteen cents per cubic yard; but the defendant's evidence failed to specify the amount of the admitted work done which was to be paid for at the rate of fourteen and the amount which was to be paid for at the rate of fifteen cents per cubic yard. Against the objection of the defendant, a witness was permitted to testify that he (the witness) had done excavating on the job for the defendant at the price of fifteen cents per cubic yard. This testimony was plainly incompetent, since what the defendant agreed to pay some one else for similar work would not tend to prove what he had agreed to pay the plaintiffs. This is now conceded by the plaintiffs' counsel. We think however, after a careful examination of the evidence, that it could not have been...