Huthsing v. Maus

• Decision Date: 31 July 1865
• Citation: 36 Mo. 101
• Parties: H. W. HUTHSING, Defendant in Error, v. JACOB P. MAUS, Plaintiff in Error.
• Court: Missouri Supreme Court

36 Mo. 101

H. W. HUTHSING, Defendant in Error,

v.JACOB P. MAUS, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1865.

Error to Cole Circuit Court.

This was a suit in the Cole Circuit Court to August term, 1860, by Henry W. Huthsing against Saunders and Maus, who were partners and subcontractors on the 20th section and 3d division of the Kansas route of the Pacific railroad, for a balance alleged to be due plaintiff below for work in excavating earth, rock and hard-pan, extra hauling and clearing, which Huthsing did under a parol agreement made by Saunders and Maus with Huthsing on said section and division.

Defendants answered and admitted that they were partners as stated in plaintiff's petition, and denied all the material allegations in plaintiff's petition, then admitted a contract made by them with William Huthsing, &c., which was the same as that alleged in plaintiff's petition, and also admitted that the same had been done, but averred that it had been paid.

At the August term, 1863, a petition was filed in the cause, sworn to by Jacob H. Maus, for a change of venue, which was overruled by the court. The cause came on for trial. Plaintiff proved by several witnesses that he had the work done on the 20th section of 3d division o Pacific railroad; that Maus admitted the contract as alleged in plaintiff's petition. Others testified that the 20th section of 3d division of Kansa route of Pacific railroad is between Jefferson City and California, Mo., and that it was the custom to make estimates of work done on that part of the road one month after the work was actually done; that Kirkwood, Porter & Co. gave one per cent, additional per cubic yard for every hundred feet haul over five hundred feet. Shiffbauer testified that he had no interest in the contract with Saunders and Maus, nor ever had any contract with them; that it was the custom on the road to retain ten pecent. of the contract price for the work done at each estimate.

The defendants offered evidence of payments made.

The plaintiff then asked the following instructions:

1. “If the jury believe from the evidence that the plaintiff and defendants entered into an agreement by which plaintiff was to work on section 20 of 3d division of Kansas route of the Pacific railroad, and that the defendants were to pay the plaintiff therefor the prices named in the petition for earth excavation and for hard-pan and for rock excavation, and one cent for extra hauling--that is to say, one cent additional for every cubic yard for every 100 feet over 500 feet--said hauling to be estimated at the same rate agreed upon between defendants in their contract with Kirkwood, Porter & Co.; and if the jury further believe that plaintiff commenced said work under said contract and continued the same until the defendant failed to pay him according to said agreement, then the jury will find for the plaintiff whatever sum or balance they may believe him entitled to from the evidence, together with six per cent, interest on same from the time it should have been paid.

2. The answer admits that the quantity of earth excavation and hardpan excavation mentioned in the petition was done and performed on section 20, and the prices claimed in the petition as having been agreed upon between the parties are also admitted in the answer to be the prices which the defendants were to pay for said work.

3. If the jury believe from the evidence that the ten per cent, of the estimates of the work was retained by the defendant at the time of any monthly estimate, and is still retained, they will include such per cent. in making their verdict.

4. If the jury believe from the evidence that any order or receipt, read in evidence by defendants, were included in the monthly settlement or settlements, they will not give the defendant additional credit therefor.”

Which were given, and defendants objected and excepted.

The defendants then asked the following instructions:

1. “The jury are instructed to exclude from their consideration all that part of the deposition of Geo. W. Way there contained in ‘Exhibit A.’ which states as follows--‘Clearing 6 610 acres; 3d class measure, 165 310 cubic yards; fencing, 42 yards.’

2. [Refused. See opinion.]

3. The jury are instructed further to take into their consideration all the facts and circumstances in evidence that tended to prove that defendants fully paid plaintiff for all or any work and labor done by him under the special contract set out in plaintiff's petition.

4. Whatever interest the jury may believe the said witness William Shiffbauer may have in the result of this action, should go to and offset, that far, his credibility.

5. The plaintiff in this case has sued upon a special contract, and before the jury can find for the plaintiff they must believe from the evidence that plaintiff and defendants entered into a contract for the performance of the work and labor as charged in plaintiff's petition.

6. If the jury believe from the evidence that the plaintiff and defendants entered into the agreement stated in plaintiff's petition, and did work and labor in pursuance thereof; yet if they further find that the plaintiff abandoned the said work and labor under said agreement without the fault of defendants, they will find for the defendants.”

The second and sixth instructions were not given, and defendants excepted. The case was submitted to the jury, and after the jury had retired the death of Saunders was suggested and the suit dismissed as to him; to which attorneys for Maus objected; but the objections being by the court overruled, defendants excepted. The jury returned a verdict for plaintiff and assessed his damages at five hundred dollars

J. L. Smith, for plaintiff in error.

I. The court committed error in refusing to grant defendants the change of venue prayed for in the petition. There was no objection taken to the petition, except that the same was not sworn to by one of the defendants instead of J. H. Maus, the son of the defendant J. P. Maus. The statute was complied with. The agent and son of defendant Maus, in the absence of either defendant, properly made the affidavit to the petition. (R. C. 1855, p. 1559, §§ 1-3; p. 1184, § 20; p. 1234, § 20.) It was not the intention of the law-makers that the petition for change of venue should be verified by the party alone seeking such change, and not by his agent, as in case of other petitions.

II. The Circuit Court committed error in allowing plaintiff to read in evidence to the jury the deposition of James W. Way; first, because the said witness was in the city of Jefferson, the place of trial of said cause, on a subpœna to testify at the time of trial, and because he was not gone a greater distance than forty miles from the place of trial, &c. (R. C. 1855, p. 658, § 28.)

III. The first instruction asked by plaintiff did not contain the law of the case, because there was no evidence upon which to predicate the same; and is further objectionable, in assuming that defendants failed to pay plaintiff in pursuance of said contract, without leaving that fact for the jury to find. (Gibson v. Long, 29 Mo. 133.) The answer of the defendants does not admit the facts stated in plaintiff's second instruction. There was not a shadow of evidence that authorized any such declaration of law as contained in the plaintiff's third instruction. The fourth instruction is not objectionable so far as the law abstractly is declared, but there was no evidence tending to show such a state of facts as it assumes. These instructions ought not to have been given, as they were calculated to mislead the jury.

IV. The second instruction asked by defendants was a correct embodiment of the law as applicable to this case. Plaintiff sued on a special contract, and evidence tending to show work and labor done for the defendant not under said contract was inadmissible. The sixth instruction asked by defendants was clearly the law of the case. (Helm v. Wilson, 4 Mo. 41; Wolcot v. Lawrence Co., 26 Mo. 272; Posey v. Garth, 7 Mo. 94; Schnerr v. Lemp, 19 Mo. 40; Henson v. Hampton, 32 Mo. 408; Marsh v. Richards, 29 Mo. 99.)

V. The court erred in permitting plaintiff to dismiss his suit as to J. W. Saunders. The defendant Saunders had died before trial, and no steps were taken to make his administrator a party defendant. This case does not fall within the provisions of art. 19 of the Practice Act, prescribing the circumstances under which a plaintiff may dismiss his petition as to some of the defendants. The plaintiff should not have been permitted to dismiss as to Saunders after verdict, or the return of the jury with their verdict.

VI. The court below should have interfered and set aside the verdict of the jury, because the record shows the fact that plaintiff abandoned his alleged agreement in the latter part of October or first of November, 1856, and defendant produced his receipts in full up to 1st of November, of that year, and several receipts for smaller sums paid subsequently.

Ewing & Belch, for defendant in error.

The court committed no error in overruling the objections of defendant (below) to the reading of the deposition of Way; he had been brought by the plaintiff (below) into court to testify, and was not...