Heyneman v. Garneau

• Decision Date: 31 March 1863
• Parties: HENRY HEYNEMAN, Respondent, v. JOSEPH GARNEAU, Appellant.
• Court: Missouri Supreme Court

33 Mo. 565

HENRY HEYNEMAN, Respondent,

v.JOSEPH GARNEAU, Appellant.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Law Commissioner's Court.

Action on account for seventy-five dollars for services in bread shop of defendant three weeks. Suit before a justice, and judgment for twenty-four dollars and fifty cents. Appeal by plaintiff to the Law Commissioner's Court. Plaintiff called John Wearen, who testified that he knew the parties; that “plaintiff was salesman for Garneau for three weeks. He came in the morning generally at 4 o'clock, and was there till 8 o'clock, selling bread and keeping the account of the bread which went out of the shop. He rendered a daily account to Garneau.” On cross-examination he said: “I drove around the bread for the defendant. I suppose my services worth as much as plaintiff's, and I got thirty-five dollars per month. He kept his account in a memorandum book. He did not keep open all day Sunday.”

Plaintiff then called B. A. Pratt, jr., who testified that he knew the parties, and that he presented this claim to Garneau, who said he would be willing to pay plaintiff at the rate of fifty dollars per month and no more, and that he presented the claim as plaintiff's attorney. Plaintiff next called Jacob Fritschle, who testified as follows: “I have been a baker for six years. I think such service worth about thirty-five dollars per month. I paid Heyneman, while in my employ, seventy-five dollars per month. I now employ a boy, pay him ten dollars a month, and also his board, for the same services. He also keeps an account of the bread given out.” Plaintiff also called William Marshall, who testified--“I was myself general book-keeper for the defendant when Heyneman worked for him. Heyneman did not do the work of a book-keeper, in my opinion.” (Defendant here admitted plaintiff was a good book-keeper, and plaintiff rested.)

Defendant then called Charles Holmes, who testified: “I am a baker, in the same business as Mr. Garneau. I suppose a boy might be employed at twenty-five dollars a month to do such services as plaintiff performed in the ordinary hours. Cannot say how much this extra labor is worth. From twelve to fourteen hours is the usual day's work in such business.”

Defendant then rested his case. This was all the evidence in the case.

The jury found for plaintiff and assessed the damages at fifty-six dollars and twenty-five cents. The plaintiff filed a remittitur, six dollars and twenty-cents, so as to leave the judgment at fifty dollars.

Lucien Eaton, for appellant.

I. Where the measure of damages is fixed by law and there is no evidence to support the verdict, a new trial will be granted. (9 Yerg. 270; 24 Mo. 520.)

II. Where the measure of damages is fixed by law and the verdict is against all the evidence, the verdict will be set aside. (14 Geo. 118.)

III. The remittitur concedes that the verdict should not stand, but does not cure its defects. On the testimony plaintiff could have had a verdict for $24.50, (21/30 of $50,) the amount of the judgment before the justice.

Garneau was willing to settle without suit for $50 per month. This would have given plaintiff $35, (7/10=21/30 of $50,) but this offer was refused, and plaintiff preferred to stand on the value of his services. The fact that Fritschle had paid plaintiff at some previous time $75 per month had nothing to do with the...