A. Jaicks Co. v. Schoellkopf

• Citation: 220 S.W. 486
• Decision Date: 09 July 1919
• Docket Number: No. 20238.,20238.
• Parties: A JAICKS CO. v. SCHOELLKOPF et al.
• Court: United States State Supreme Court of Missouri

220 S.W. 486

A JAICKS CO. v. SCHOELLKOPF et al.

No. 20238.

Supreme Court of Missouri, Division No. 1.

July 9, 1919.

On Motion for Rehearing, April 10, 1920.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Action by the A. Jaicks Company against Henry Schoellkopf and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Ross B. Gilluly and Dwight M. Smith, both of Kansas City, for appellants.

T. B. Buckner and Clarence S. Palmer, both of Kansas City, for respondent.

BOND, J.

I. Action on six certain special tax bills, against certain lots owned by defendants, which were issued under Ordinance No. 9723 of Kansas City, Mo., providing for and authorizing the paving of Fifteenth street from the west line of Myrtle avenue to the east line of Cypress avenue. The contract for this paving was awarded to the A. Jaicks Company, which claims that the work was done and completed according to its terms and was accepted by the city.

Service of summons was waived and appearance entered voluntarily.

The defendants filed identical separate answers, denying generally and alleging that the work was not done according to the terms and specifications of the contract.

A reply was made, and the case was tried before the court without a jury. Plaintiff had judgment, and defendants appealed, assigning errors in the admission of testimony and the giving and refusing of instructions.

II. For the plaintiff the court gave the following declaration of law:

"The court, sitting as a jury, declares the law to be that, under the pleadings and testimony in this case, the judgment must be for the plaintiff for the full amount of the tax bills offered in evidence with 8 per cent. interest from date."

The giving of this declaration of law was error under the evidence adduced by defendants, which tended to prove that the work was not performed according to the letting contract. On the trial of this case the court acted in a dual capacity—a trier of the facts and a declarant of the law. By the foregoing declaration the court, in effect, excluded from its view any consideration of the conflict in the evidence and indicated that the plaintiff "must" recover as a matter of law. This was just as erroneous as it would have been for the court to have directed a finding on conflicting testimony in case a jury bad been called to try this legal action. Vincent v. Means, 184 Mo. loc. cit. 341, 82 S. W. 96, and cases cited.

In an early case, speaking of a declaration of law "that upon the evidence of this case the plaintiff is entitled to recover," this court said:

"This instruction is manifestly erroneous. It takes the whole case from the jury, or from the court sitting as a jury, and declares as a matter of law, without any finding upon the evidence, that the plaintiff is entitled to recover. Whether the plaintiff was entitled to recover depended upon the sufficiency and weight of evidence in the cause on the two questions to be passed upon. It was not for the court but the jury, or, which is the same thing, the court sitting as a jury, to pass upon the sufficiency and weight of the evidence." De Graw v. Prior, 53 Mo. loc. cit. 314, 315.

To the same effect, Lumber Co. v. Christophel, 62 Mo. App. loc. cit. 101.

For the error in giving the foregoing declaration of law, over the exception of defendant, the judgment herein is reversed, and the cause remanded. It is so ordered.

BLAIR, P. J., and GRAVES, J., concur.

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