Kines v. Jamison

• Decision Date: 29 September 1925
• Docket Number: No. 19114.,19114.
• Citation: 277 S.W. 969
• Parties: KINES v. JAMISON.
• Court: Missouri Court of Appeals

277 S.W. 969

KINES v. JAMISON.

No. 19114.

St. Louis Court of Appeals. Missouri.

September 29, 1925.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by Vine E. Kines against Carson E. Jamison. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank J. Duvall, of Clarkesville, and Hostetter & Haley, of Bowling Green, for appellant.

A. J. Murphy, Jr., and Ras Pearson, both of Louisiana, Mo., for respondent.

BENNICK, C.

This action is based upon a verbal contract, whereby plaintiff seeks to recover for board alleged to be due her from defendant. Originating in a justice's court, the case was tried on appeal in the circuit court, wherein the verdict was for plaintiff in the sum of $66.58 and a judgment entered thereon, from which defendant has appealed.

In the statement filed in the justice's court plaintiff alleged that at the request of defendant she furnished him board from October 1, 1921, to September 6, 1923, that the board so furnished was reasonably worth the sum of $144.50, and that she had often demanded the same of defendant, but that he had neglected, failed, and refused to pay.

Plaintiff was the wife of Milton L. Kines, who for a period of 14 years had been a tenant of defendant's on one of defendant's farms near the town of Annada, Mo. Defendant began boarding with plaintiff on August 20, 1921, under an agreement whereby he was to pay for board at the rate of $4 per week. This agreement was carried out from that date until October 1st of the same year.

Plaintiff testified, and was corroborated by her husband, that the contract under which defendant was to receive board was entered into solely between defendant and herself, and that her husband was not present at the time; that defendant requested her to keep account of the number of meals furnished him; that from October 1, 1921, to September 6, 1923, defendant paid her nothing for his board, although she requested him for payment on at least three different occasions, once in 1921, again in 1922, and, finally, on the day of the termination of the tenancy, September 6, 1923.

Defendant testified that, under the contract of tenancy entered into between Kines and himself, Kines was to provide all the labor necessary in planting, raising, and harvesting the crops, and as lease rent was to give defendant one-half of the crops raised on the farm; that on occasions Kines had trouble with his back so that he was unable to do his work, and that about the 1st of October, 1921, defendant proposed to both plaintiff and her husband that he would continue to live with them and would thereafter work on the farm, but that in return for his labor he would require them to furnish him his board free. According to his evidence, both plaintiff and her husband agreed to this, and plaintiff advised defendant that, when a final settlement should be made, he should make it with her husband.

Defendant further testified that during this period of time he did the general farm work, such as sowing the wheat, plowing the corn, and harvesting the crops. This evidence was denied by plaintiff as well as by her husband, who testified that defendant did no work on the farm with the exception of some few days' labor furnished in exchange for work done by Kines on other farms owned by defendant.

Upon the termination of the tenancy, September 6, 1923, defendant prepared a written contract of settlement, which was shown to both plaintiff and her husband. According to plaintiff's evidence, this contract was unsatisfactory to Kines, who advised defendant that he would not sign it. On September 10, 1923, Kines and defendant went to the Farmers' Elevator in Annada, where, after some minor alterations in the contract were made, the agreement was signed by both Kines and defendant. This contract was introduced in evidence as defendant's Exhibit 1, and recites that it was in full payment and satisfaction of all claims and demands of the said Kines against defendant, including the claim for board. Plaintiff and her husband both testified that the contract they saw on September 6th did not mention a settlement for board, and differed from defendant's Exhibit 1 in other respects. Kines testified that he did not read the agreement he signed before affixing his signature thereto, and that he had never been authorized by his wife to settle the board bill alleged to be due her from defendant.

Defendant testified that defendant's Exhibit 1 was the only contract ever prepared, that it was the one shown to and read both by plaintiff and her husband on September 6th, that plaintiff was present at the elevator when the contract was signed by her husband and himself, and that she advised him that whatever he and her husband did was all right with her. This testimony was flatly denied by plaintiff.

During the cross-examination of defendant, plaintiff's attorneys attempted to interrogate him as to the number of farms owned by him in that community, which line of questioning was objected to by defendant's counsel on the theory that such evidence was collateral to the issues in the case and was prejudicial, in that it was being elicited for the purpose of contrasting the wealth of defendant with the poverty of plaintiff. The objection was overruled, and the action of the court in this respect is here assigned as error by learned counsel for appellant. There is no doubt but that it would have been improper for evidence to have been introduced for the purpose of prejudicing the minds of the jurors against defendant because he may have enjoyed a greater measure of prosperity than plaintiff. However, under the facts in the case, we think there is no merit in appellant's argument, for the reason that in admitting this evidence the court expressly stated that he was doing so only for the purpose of showing where defendant was at different times and what he was doing; such facts being some evidence from which the jury could determine whether "or not defendant was actually doing the amount of manual labor upon the farm leased to Kines as was testified to by him, or whether his business required his presence somewhere else. For such purposes this evidence was entirely relevant and proper, and, accordingly, we rule this point against defendant.

Error is next assigned in the giving of four instructions for plaintiff, Nos. 1, 2, 3, and 5, which follow:

"(1) The court instructs the jury that if you find from the testimony in this cause that the plaintiff, at the special instance and request of the defendant, furnished meals and board for himself and others from October 1, 1921, to September 6, 1923, then and in that case your verdict should be for the plaintiff unless the defendant has shown to your reasonable satisfaction by the greater weight of the evidence that the same has been paid for in work as claimed by the defendant.

"(2) The court instructs the jury that the burden of proving that the meals and board for defendant and others sued for has been paid is upon the defendant unless the defendant has met this burden and proven to your reasonable satisfaction by the greater weight of evidence that the meals and board furnished by the plaintiff to the defendant and others has been paid for in work as claimed for by the defendant; then your verdict must be for the plaintiff.

"(3) The court instructs the jury that before you can find a verdict for the defendant on account of the alleged settlement read in evidence under date of September 6, 1923, signed by defendant and plaintiff's husband, the defendant must show to your reasonable satisfaction by the greater weight of the evidence that the plaintiff, prior...