A. Kron Livery & Undertaking Co. v. Weaver

• Decision Date: 02 February 1926
• Docket Number: No. 19143.,19143.
• Citation: 280 S.W. 54
• Parties: A. KRON LIVERY & UNDERTAKING CO. v. WEAVER et al.
• Court: Missouri Court of Appeals

280 S.W. 54

A. KRON LIVERY & UNDERTAKING CO. v. WEAVER et al.

No. 19143.

St. Louis Court of Appeals. Missouri.

February 2, 1926.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action in justice court by the A. Kron Livery & Undertaking Company against Harry L. Weaver and Mrs. Jessie Wells. On appeal to the circuit court, judgment was rendered for plaintiff against defendant Weaver, and ft favor of defendant Wells, and plaintiff appeals from an order granting defendant Weaver a new trial. Reversed, and cause remanded, with directions.

Stout & Spencer, of St. Louis, for appellant. Forrest G. Ferris, of St. Louis, for respondent Weaver.

SUTTON, C.

This is a suit to recover $353.50 for services. The suit was commenced in a justice court in the city of St. Louis. Thence it went on appeal to the circuit court. The cause was tried anew in the circuit court with a jury. The trial resulted in a verdict in favor of plaintiff against the defendant Harry L. Weaver for $420.66, including interest, and in favor of the defendant Jessie Wells, and judgment was given accordingly. The defendant Harry L. Weaver duly filed his motion for a new trial. The court sustained the motion for a new trial on the ground that "the court erred in allowing plaintiff to introduce illegal, incompetent, irrelevant, immaterial, and prejudicial evidence over the defendant's objection thereto." From the order granting a new trial plaintiff appeals.

In the statement of its cause of action filed in the justice court, plaintiff describes the services for which he sues as services rendered in burying Louis Wells, and as services rendered in attending to the funeral of said Louis Wells, and alleges that, prior to rendering the services mentioned, the defendant Harry L. Weaver promised and agreed with plaintiff that, if plaintiff would render such services, the defendant Harry L. Weaver would pay the bill for the same; that, relying upon said promise and agreement, plaintiff rendered the services mentioned; that the services were designated by the defendant Jessie Wells and rendered upon her order; and that the defendant Jessie Wells agreed and promised that the same would be paid by the defendant Harry L. Weaver and herself.

On November 4, 1920, Louis Wells was injured by a boiler explosion while working at the Del Monte Hotel in the city of St. Louis, and died from his injuries on the same day. Defendant Jessie Wells was the wife of said Louis Wells. The Del. Monte Hotel Company was the owner of the hotel, and defendant Weaver was the president of the company and manager of the hotel. Plaintiff was engaged in the undertaking business in said city.

Plaintiff's evidence tended to show that upon the death of said Louis Wells plaintiff took charge of the body, prepared it for burial, dug the grave, furnished the casket, box, hearse, three limousines, gloves for the pallbearers, a spray of flowers, employed and paid the minister and singer for the funeral, placed and paid for advertisements of the death and funeral in the Post Dispatch and Globe Democrat, directed the funeral, and did whatever else was necessary and proper to suitably bury the body; that the reasonable charges therefor are as follows: Hearse, $15; three limousines, $36; casket, $175; box, $25; embalming, $25; digging grave, $12; gloves for pallbearers, $4; shaving, washing, and dressing the body, $5; transferring box and remains, $16; advertisements in Post Dispatch and Globe Democrat, $10.50; spray of flowers, $10; minister, $10; singer, $10; aggregating $353.50; that these things were furnished and done at the instance of defendant Weaver, and pursuant to his promise and agreement to pay therefor. The evidence for defendant Wells tended to show no liability on her part.

The evidence relating to the furnishing of the hearse, limousines, casket, box, gloves, flowers, and the expenditures made for the minister and singer and the advertising in the Post Dispatch and Globe Democrat was objected to by defendant Weaver on the ground that these items were not included in the allegations of the statement, and the evidence was admitted by the court over this objection. It was on account of the admission of this evidence that the court below granted defendant a new trial.

Defendant Weaver contends that the word "services," as used in plaintiff's statement, is not broad enough in its meaning to include materials and things furnished, such as a hearse, limousines, a casket, a box, gloves, and flowers, or to include expenditures for advertisements, minister, and sing, er, but that the word as used in the statement should be construed in the strict and narrow sense of labor performed. We are unable to agree with the defendant's contention. The word "service" signifies much more than merely the act of performing labor.

In Tracey v. Waters, 39 N. E. 190, 162 Mass. 562, a person having a contract for the erection of a building made an assignment of all claims for money due and to become due "for services rendered under said contract," and it was held that the assignment included claims for expenditures made, and for lumber and materials furnished under the contract, as well as for labor performed thereunder.

In Somers v. Keliher, 115 Mass. 165, Shaughnessy by contract agreed with the defendant to furnish all the materials and do all the carpenter work for building a house for defendant on his land. The sum of $2,400 was agreed to be paid for the materials and labor in installments according to the progress of the work, the last installment of $1,400 being payable in 30 days after the work should be completed. Before the work was completed Shaughnessy made an assignment of the last installment of $1,400 to become due him from the defendant under said contract. The assignment was never recorded. It was held that the assignment was within the ban of a statute which declared unrecorded assignments of future earnings invalid. In argument the court said:

"The statute applies to the compensation for services; a term which involves more than the mere labor of the person by whom they are rendered, and may include expenditures as well as labor. What the principal defendant [Shaughnessy] in the original suit undertook to do under his contract vas, not to sell certain lumber and other building materials to Keliher, and to perform certain labor upon them, but to render the specific service of building a house for him, furnishing all the labor and materials therefor, at an agreed price for the entire service. By rendering that service, he would earn, and become entitled to, certain periodical payments. But the final payment, which is...