Johnson v. Kahn

• Decision Date: 20 January 1903
• Citation: 71 S.W. 725,97 Mo.App. 628
• Parties: WILLIS JOHNSON, Respondent, v. E. KAHN, Appellant
• Court: Missouri Court of Appeals

71 S.W. 725

97 Mo.App. 628

WILLIS JOHNSON, Respondent, v. E. KAHN, Appellant

Court of Appeals of Missouri, St. Louis

January 20, 1903

Appeal from Audrain Circuit Court.--Hon. E. M. Hughes, Judge.

Reversed and remanded.

R. D Rodgers for appellant.

(1) The statement of the facts constituting plaintiff's cause of action filed with the justice, and on which the case was tried in the circuit court, was a nullity. It did not advise the opposite party of the nature of the claim and was not sufficiently specific to bar another action. Secs. 3852 and 3853, R. S. 1899; Hill v. St. L. O. & S. Co., 90 Mo 104; Rosenberg v. Boyd, 14 Mo.App. 429; St Louis v. Babcock, 156 Mo. 148. (2) The testimony in this case showed that whatever the plaintiff did toward the sale of the saloon was done as an act of friendship or as agent for his cousin, Charles Johnson. The trial court should have given defendant's refused instructions Nos. 1, 2, and 4, submitting the case to the jury on that theory of fact. Warren v. Cram, 71 Mo.App. 638; Rosenthal v. Drake, 82 Mo.App. 358; Chapman v. Currie, 51 Mo.App. 40. (3) The testimony of the expert witnesses, Hopkins & Ricketts, as to the value of plaintiff's services sued for, was merely advisory, the weight of it being for the determination of the jury. Hence, the manifest error of giving the latter part of plaintiff's instruction No. 5. Cosgrove v. Leonard, 134 Mo. 419; Rose v. Spies, 44 Mo. 20. (4) The court erred in refusing to allow defendant to show what work the plaintiff did and how much time he spent in trying to sell the saloon to Charles Johnson. The amount of his compensation, if any, depended thereon. Mechem on Agency, sec. 605-606; Eggleson v. Boordman, 37 Mich. 14; Vilos v. Downer, 21 Vt. 419; Bank v. Combs, 7 Penn. St. 543; Stanton v. Embry, 93 U.S. 548.

REYBURN, J. Bland, P. J., and Goode, J., concur.

OPINION

REYBURN, J.

This action was commenced before a justice of the peace upon the following statement:

"Mexico, Mo., Sept. 17. 1901.

"E. Kahn, Dr.

"To Willis Johnson,

"Making sale of saloon stock, $ 92.50."

The case was appealed to the circuit court, where it was tried before a jury upon the same account. At no stage of the proceeding did defendant object to the sufficiency of the statement filed, except that at the close of the trial in the circuit court he asked an instruction that under the statement filed and the evidence introduced, plaintiff was not entitled to recover, which instruction was refused by the court. On trial in the circuit court the evidence showed that appellant was conducting a saloon in Centralia, Missouri, which he wished to sell; that he agreed to pay respondent a commission if he would find a purchaser, and on August 25, 1901, respondent went to appellant's home, and told him there was a man in town who wished to buy his saloon. Appellant accompanied by respondent went to his place of business, met Charles Johnson, showed him through his establishment, named the selling price and in the course of a few weeks sold the saloon to Charles Johnson.

The first question presented is the sufficiency of the statement or account constituting the plaintiff's cause of action originally filed with the justice, and on which the case was tried in the circuit court. Section 3852 of the statutes provides that no formal pleadings on the part of either plaintiff or defendant shall be required in a justice's court, but before any process shall be issued in any suit the plaintiff shall file with the justice the instrument sued on or a statement of the account, or of the facts constituting the cause of action upon which the suit is founded. Justice's courts are inferior tribunals, established to facilitate the summary disposal of petty controversies as economically and as expeditiously as possible. Formal pleadings therein are expressly dispensed with in order that suitors, if they see fit, without professional aid may prepare their own statements of causes of action, and conduct their own trials. A statement sufficiently specific to inform the opposite party of the foundation and character of the demand asserted, and to bar a subsequent action predicated upon the same facts, is a full and sufficient compliance with the statutory provision. The statement on which the present action was begun meets these requirements of the statute, and in substance, if not in identical form, has received approval and can no longer be assailed. Force v. Squier, 133 Mo. 306, 34 S.W. 574, and cases therein cited.

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