Kraft's Adm'rs v. Hurtz

• Decision Date: 31 October 1847
• Citation: 11 Mo. 109
• Parties: KRAFT'S ADM'RS v. HURTZ & JUNGK.
• Court: Missouri Supreme Court

11 Mo. 109

KRAFT'S ADM'RS

v.HURTZ & JUNGK.

Supreme Court of Missouri.

October Term, 1847.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

PRIMM & WHITTELSEY, for Appellants.

McBRIDE, J.

This was an action on an open account for work and labor done, originally brought before a justice of the peace for St. Louis county, where the plaintiff, Jungk, obtained judgment; an appeal was taken to the Circuit Court, when upon a trial de novo in that court the plaintiff again recovered judgment. The defendant moved for a new trial, assigning the usual reasons, which being overruled, he excepted to the opinion of the court, and appealed to this court.

It appears from the bill of exceptions that the account filed before the justice was in the name of “Henry Kraft to Augustus Jungk, Dr.” That the affidavit for the purpose of obtaining a builder's lien, is in the name of the same parties, as well as all the subsequent proceedings in the justice's court and in the Circuit Court, up to the trial term in the Circuit Court, when on motion of the plaintiff's attorney, leave was given the justice to amend his judgment and proceedings, “so as to conform to the account filed before said justice of the peace, and also in conformity to the facts in the case.” Thereupon the justice amended the record and proceedings by inserting before the name of Jungk, where it occurs, the words “Hurtz and Jungk to the use of.”

The defendant having been examined as a witness on behalf of the plaintiff, testified that he had employed Hurtz and Jungk to do carpenter's work for him, and was to pay them in meat, he being a butcher, having a slaughter-house in the city of St. Louis, and a stall in the centre and south market-house. That the plaintiff had usually obtained meat from him at his stalls, by small quantities, until a short time before the commencement of this suit, when the father-in-law of Jungk called at his slaughter-house for a quarter of beef, which he could not furnish, not having that quantity on hand--that some meat was got by plaintiff at his stall afterwards--that no particular contract was made as to the place where the meat was to be furnished, but that he supposed it was to be furnished at his stall in either market. Before the commencement of this suit, a settlement was had, and he fell in debt to the plaintiff about $80, to be paid in meat as aforesaid, which balance he has always been ready and willing to pay in meat such as he had--that he had never refused to deliver meat to the plaintiffs or to their order whenever he had it.

Thereupon the court instructed the jury as follows: 1. If the jury believe from the evidence that the plaintiff requested the defendant to furnish beef under the agreement spoken of by the defendant in his testimony, and that the defendant neglected or refused to deliver it upon such request, then in such case the defendant is liable in this action for the whole amount that was due the plaintiff at the time of the commencement of this suit. If no place was fixed upon by the parties for the delivery of the beef, then it was the duty of the defendant to deliver it or offer to deliver it at the residence or place of business of the plaintiff. The defendant asked adverse instructions, which the court refused to give.

Two questions arise on the record. 1. The leave given to the justice of the peace to amend the record and proceedings. 2. The law declared in the instructions.

Great latitude has been taken by the courts in permitting amendments to be made in the record and proceedings had before justices of the peace for the purpose of reaching the merits of the case...