Johnston v. Star Bucket Pump Co.

• Citation: 202 S.W. 1143,274 Mo. 414
• Decision Date: 29 March 1918
• Docket Number: No. 18784.,18784.
• Parties: JOHNSTON et al. v. STAR BUCKET PUMP CO.
• Court: United States State Supreme Court of Missouri

202 S.W. 1143

274 Mo. 414

JOHNSTON et al. v. STAR BUCKET PUMP CO.

No. 18784.

Supreme Court of Missouri. In Banc.

March 29, 1918.

Rehearing Denied April 27, 1918.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by Philip G. Johnston against the Star Bucket Pump Company. From a judgment for plaintiff entered on the findings of a referee, defendant appeals. Affirmed.

Kinealy & Kinealy, of St. Louis, for appellant. S. C. Taylor, of St. Louis, for respondent.

GRAVES, C. J.

Plaintiff, a contractor and builder, sues the defendant in quantum meruit for the reasonable value of labor and materials furnished in the construction of a three-story brick building in the city of St. Louis. The petition states a simple action in quantum meruit. In the petition is a full itemized statement of account between the parties, showing the items of labor and materials furnished, and the payments made to plaintiff by the defendant. Such petition asks judgment for the balance of $12,920.68, with interest thereon from June 9, 1911, and that the plaintiff have adjudged a mechanic's lieu on the house and lot involved therein. The petition avers the statutory steps for this statutory lien. To this petition the defendant filed answer and counterclaim. The answer is: (1) A general denial, with which is coupled an admission that defendant did contract with plaintiff to furnish the labor and material for its building, and that plaintiff did certain work thereupon; (2) plea of payment. These two portions of the answer are in fact a general denial and a plea of payment.

The defendant then pleads a written contract with plaintiff, detailing with particularity many of the provisions thereof. The answer then avers that the plaintiff breached the contract (stating particulars), and that by reason of the breach of the contract by plaintiff the defendant had been damaged in the sum of $5,908, for which defendant asked judgment against plaintiff. With the exception of (1) the general denial and (2) the plea of payment, supra, each paragraph of the answer is bottomed upon a breach of the contract by plaintiff. The reply admitted the execution of the written contract, and admitted that the terms thereof were as pleaded by defendant, but averred that defendant had breached the contract. The particulars of both answer and reply can be best dealt with in the course of the opinion. This outline suffices to show the character of the issues.

The trial court sent the case to a referee, who took the testimony, made findings upon the issues of fact, and recommended that judgment go for the plaintiff in the sum of $7,442.75, with interest at 6 per cent. from June 1, 1911. Upon a review of the referee's findings, the court concluded that the referee had erred in two instances—one in the sum of $200, and another in the sum of $1,425.14—and such court deducted these sums from the amount of the judgment recommended by the referee, and otherwise approved the findings of the referee, and directed judgment for plaintiff in the sum of $5,818.31, with interest at 6 per cent. from June 1, 1911, to date of judgment. Judgment was entered accordingly. The court also entered judgment against the defendant on the counterclaim, so that the defendant not only lost its counterclaim for $5,908, but lost its claim of payment, and had a judgment against it for over $6,000, including the interest. These details we give to show our jurisdiction on this the defendant's appeal.

I. Every issue in this case is an issue at law and not in equity. It is true that there is a long account involved, such as would make the case one for compulsory reference, and the case was properly referred. The parties did not object to the reference, but objections would have been unavailing, because, as said, the character of the account is such as authorized a compulsory reference.

It has been urged that long and intricate accounts are subjects of equity cognizance, and that cases to that effect may be found, I have no doubt. But the question is, How have long and intricate accounts, in cases otherwise purely cases at law, been recognized in this state? Have long and intricate accounts been classed in equity or at law? We say at law, and not in equity. To start with it required no statute to authorize a reference in equity. This was one of the powers of a court of equity, and such courts had the power to either appoint a master for a term, or a special master in the particular case. 16 Cyc. p. 429 et seq. If the mere fact of there being a long and intricate account involved threw the case in equity, then the chancery courts could have the accounting taken before their master or commissioner, and no reference statute was necessary in such case. Our lawmakers did not so view the matter. From the earliest legislation down to the present, we have viewed long and intricate accounts (there being no other matters of equitable cognizance in the case) as issues at law, and not as issues in equity. The very best evidence of our views of the matter is found in the fact that we concluded it to be necessary to pass a law for compulsory reference. No law was necessary, if the long and intricate account of itself threw the case into equity. But a tracing of our reference laws shows that by law we have always placed accounts of this character on the law side of our jurisprudence, and not upon the equity side. This matter we take up presently.

In this case able counsel for appellant asks us to review the rule announced in St. Louis v. Parker-Washington Co., 271 Mo. 229, 196 S. W. 767. It might be well to restate that rule before tracing tie history and development of our reference statutes. The Parker-Washington Co. Case simply holds that in a case of compulsory reference, where the issues involved are issues purely at law, and where the trial court has approved the findings of fact made by the referee, such findings, so approved, will not be disturbed by this court, if there is substantial evidence to support such findings. In other words, that this court, in such case, will not review the evidence to determine its weight, but will only review the evidence to determine the fact as to whether or not there is substantial evidence to support the findings. Such findings in such a case stand here upon the same plane as the verdict of a jury in a law case, or as the findings of a court in a law case, where no jury has been called. Such is the rule of the Parker-Washington Co. Case, and such rule is fully sustained by the history of our reference laws, as well as by the well-considered case law of the state.

It has been suggested that our original statute as to references is found in the act of 1848-49, at page 91. To this I do not agree. Long before that we had reference statutes, and long before that long accounts, in cases that were otherwise cases at law, were placed and classed as issues of law. But let us get the facts from the books.

In Laws of Missouri 1825, vol. 2, it will be seen that we had two Practice Acts. From page 620 to 636 of said volume 2 is the Practice Act for cases at law. It is made up of two chapters, and is headed "Practice at Law." Following this, at pages 636 to 648, is the law governing practice in chancery cases. This is a single act of 5) sections, and is entitled "Practice in Chancery." These two separate Practice Acts continued until the act of 1848-49. Now, bearing in mind the two distinct acts, one for law matters and one for chancery matters, let us trace the real origin of our reference law. Section 35 of chapter 2 of the act, entitled "Practice at Law" (Laws of Missouri 1825, vol. 2, p. 630), is a reference statute. It provides that:

"If neither party require a jury the law and the facts may be determined by the court, or the court may refer such cause to three or more indifferent and competent persons, whose report, if approved by the court, shall have the same effect as a verdict by a jury."

This was our first reference statute. Note the force and effect given to the report of the referees, when approved by the court— "the same effect as a verdict by a jury." Such was the holding in St. Louis v. Parker-Washington Co., 271 Mo. loc. cit. 241, 196 S. W. 767. But further, in Laws of Missouri 1825, vol. 1, p. 138, under the head of "Arbitrations," we have in section 4 of that act a reference statute pure and simple. This section provides for a consent reference; whereas, section 35, p. 630, vol. 2, Laws of Missouri, was not a consent reference. Under this section 35, if the parties waived a jury, the case was triable by the court, or by a referee at the option of the court, and not the option or consent of the parties. In other words, once a jury waived, the reference was compulsory, and the findings of the referee, when approved by the court, stood as the verdict of a jury. Thus the origin of references in Missouri, and they had their place only in actions at law. This was true because in chancery cases there was no need for a referee. The court had its master in chancery, to whom could be referred all matters, including the taking of an accounting, if such was necessary in the cause pending in chancery.

Now, when we reach the Statutes of 1835, the matter is made more explicit. In the Missouri Statutes of 1835, the circuit courts by express provisions of Constitution and law, exercised both law and equity jurisdiction. Statutes of 1835, pp. 32 and 155. In equity they proceeded according to the rules, usages, and practice of courts of equity. Then there was a distinct act of six chapters governing the "Practice in Chancery." See Statutes of 1835, pp. 506 to 517. In the Statutes of 1835, at page 450, will be found the Practice Act (in seven articles) governing courts of law. It is entitled "Practice at Law." Section 15 of article 4 of this act (Statutes 1835, p. 463) reads:

"All issues of fact joined in any suit, in any court of record, shall be tried...