Jones v. Reilender

• Decision Date: 06 February 1934
• Docket Number: No. 22586.,22586.
• Parties: JONES v. REILENDER.
• Court: Missouri Court of Appeals

67 S.W.2d 813

JONES v. REILENDER.

No. 22586.

St. Louis Court of Appeals. Missouri.

February 6, 1934.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be published in State Reports."

Suit by J. D. Jones against E. A. Reilender. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

R. E. Kleinschmidt, of Hillsboro, for appellant.

P. S. Terry, of Festus, and E. C. Reilender, of Cleveland, Ohio, for respondent.

HOSTETTER, Presiding Judge.

This is a suit begun on the 12th day of July, 1928, in the circuit court of Jefferson county, Mo., by attachment upon an account for labor claimed to have been performed for defendant by plaintiff.

The claim was for $200, being for twenty days "work in mines and prospecting, including use of truck" at $10 per day, and covered a period beginning on April 17, 1928, and ending on May 14, 1928.

Defendant, a resident of the state of Ohio, was the owner of the lead mine upon which the work was claimed to have been performed.

The case was tried twice in the circuit court to a jury; the first trial being on the 24th day of September, 1929, at which trial plaintiff recovered $200, and the second trial was had on the 24th day of June, 1932, at which trial plaintiff recovered $200 plus $48 interest, aggregating $248.

The trial court set aside the verdict of the jury on the first trial and granted defendant a new trial. The plaintiff did not appeal from this action of the trial court.

Among the grounds set out in defendant's motion for a new trial was one that the verdict was against the weight of the evidence. But the court in sustaining defendant's said motion for a new trial did not follow the requirements of the statute (section 1003, R. S. Mo. 1929 [Mo. St. Ann. § 1003, p. 1269]), and failed to specify of record the ground or grounds upon which the motion was sustained.

After the second trial defendant again filed a motion for a new trial, which motion the trial court sustained, specifying two grounds, set out in same, upon which it based its action in so doing, viz. that the verdict was against the weight of the evidence, and that the demurrer offered by defendant at the close of the evidence should have been sustained.

From this action of the trial court plaintiff duly perfected his appeal to this court.

The evidence was substantially the same at both trials. Defendant himself testified by deposition, which was taken shortly before the first trial.

The testimony offered on behalf of the plaintiff tended to show that he was employed by one Harrison De Clue to do the work at the mine on which his claim was based; that De Clue was agent for defendant, and had authority to employ laborers to do work at the mine; that prior to the employment of plaintiff De Clue had acted as agent for Cornelius Newkirk, father-in-law of defendant. The testimony of defendant as disclosed by his deposition was to the effect that Newkirk had been personally in charge of the mine up to September, 1927, and was supervising the prospecting for him, and that he (Newkirk) left the mine in the early part of September, 1927, and was never again at the mine, he having died in April, 1928.

De Clue testified that he had been authorized by defendant to employ plaintiff and others to work at the mine, and that he had mailed slips to defendant at intervals showing that plaintiff and other men were working at the mine.

The testimony of plaintiff was to the effect that he did all the work which he claimed to have done (in fact there was no evidence disputing that fact); that the amount charged by him for the work was reasonable. Other witnesses testified that plaintiff did the work and that his charges were reasonable.

The testimony further showed that defendant paid all the other workmen who were employed by De Clue at approximately the same time plaintiff was employed, although "jewing" them down some; that he left a check for $25 as full payment for plaintiff's services with a bank, which plaintiff refused to accept.

Defendant, testifying by deposition, denied that he had received any slips from De Clue as to plaintiff's work; that he had no notice of plaintiff's employment until he received a telegram from plaintiff after the work was done demanding payment. However, he did admit that he had authorized De Clue to hire help to clean out the mine, but that he had limited the amount which De Clue should spend for such purpose to $50.

De Clue testified that he did not understand that he was limited as to the amount of labor he could employ, and that in employing plaintiff he did not advise him as to any limit on the amount he could expend for labor, and plaintiff testified that he was not so advised and had no knowledge of any such limitation.

There was no testimony tending to show that plaintiff had any knowledge of any limitation on De Clue's authority as to the amount of money he should expend on behalf of the owner for labor on the mine, even if there were any such limitation. Plaintiff having performed the work would not be bound by a limitation on the authority of the agent acting within the apparent scope of his authority which was unknown to him. Cross v. Ry. Co., 71 Mo. App. loc. cit. 590; Halliwell v. Oriental Cement & Plaster Co., 170 Mo. App. 582, 157 S. W. 89, loc. cit. 90; 2 Corpus Juris, p. 660, note 91; Reynolds v. Railroad Co., 114 Mo. App. 670, 90 S. W. 100.

The trial court is prohibited from granting the same party a second new trial on the ground that the verdict is against the weight of the evidence. Sections 974 and 1003, R. S. Mo. 1929 (Mo. St. Ann. §§ 974, 1003, pp. 1247, 1269); Van Loon v. St. Joseph Ry., Light, Heat & Power Co., 271 Mo. 209, 195 S. W. 737; O'Donnell v. Ry. Co., 152 Mo. App. 606, loc. cit. 614, 133 S. W. 1165; McFarland v. Accident Ass'n, 124 Mo. loc. cit. 222, 223, 27 S. W. 436; Vermillion v. Parsons, 98 Mo. App. 72, 71 S. W. 1092; Nicol & Co. v. Hyre & Co., 58 Mo. App. 134.

Where the trial court sustains a motion for a new trial without specifying the ground or grounds on which it bases its action and the motion contains an allegation that the verdict is against the weight of the evidence, then the presumption arises that it was sustained on that ground. Harris v. McQuay (Mo. App.) 242 S. W. 1011, 1012; Jiner v. Jiner, 182 Mo. App. 153, 168 S. W. 231; Riche v. City of St. Joseph...