Lancieri v. Kansas City Improved Street Sprinkling Co.

• Citation: 69 S.W. 29,95 Mo. App. 319
• Parties: LANCIERI v. KANSAS CITY IMPROVED STREET SPRINKLING CO.
• Decision Date: 09 June 1902
• Court: Missouri Court of Appeals

69 S.W. 29

95 Mo. A. 319

LANCIERI v. KANSAS CITY IMPROVED STREET SPRINKLING CO.

Court of Appeals at Kansas City, Missouri.

June 9, 1902.

REFEREE'S FINDINGS — EVIDENCE — ACCOUNT — MUTUAL DEMANDS — LIMITATIONS.

1. Where a cause is tried before a referee, reviewing courts will not go into the weight of the evidence, but will presume the finding correct.

2. Where plaintiff performed services and paid money for defendant at its request at divers times during a period of three years, and during the same time defendant paid to plaintiff generally divers sums, which were credited generally on the account, and paid a claim against him at his request, there was an open, mutual account, under Rev. St. § 4278, and limitations did not commence to run against any item until the date of the last item.

Appeal from circuit court, Jackson county; Edward P. Gates, Judge.

Action by Joseph Lancieri against the Kansas City Improved Street Sprinkling Company. From a judgment for plaintiff, defendant appeals. Affirmed.

E. Wright Taylor, for appellant. Thomas J. Seehorn, for respondent.

SMITH, P. J.

The plaintiff sued the defendant, a corporation, before a justice of the peace, on the following account, to wit:

                For labor performed by plaintiff for
                 and at the request of defendant, and
                 for which it agreed to pay, from November
                 11, 1894, to November 30
                 1895 ....................................  $114 38
                For money expended by plaintiff at
                 the request and for the use of defendant
                 and which it agreed to pay                   48 00
                                                            _______
                   Total .................................  $162 38
                On which there is a credit of $70, as
                 follows: October 12, 1896, $15; June
                 2, 1897, $15; September 2, 1897
                 $15; November 9, 1897, $15; December
                 2, $10 ..................................    70 00
                                                            _______
                   Balance ...............................  $ 92 38
                

The defendant filed a paper entitled an "answer," wherein it is denied that the plaintiff paid the items mentioned in his account at its request. It is therein further alleged that "at various dates and times in the year 1895, and thereafter, it paid to the plaintiff, and for his account, at his request, the sum of one hundred and twenty-five dollars, which is ten dollars and sixty-two cents more than was due to the plaintiff. Defendant states that it overpaid the plaintiff the said sum of ten dollars and sixty-two cents by the mutual error and misunderstanding of both this plaintiff and defendant." And it was still further pleaded that the said items are barred by the statute of limitations, more than five years having elapsed since plaintiff claims to have paid them.

The cause was removed to the circuit court by appeal, when, by consent of parties, it went to a referee, who, after a hearing, made a report containing the following comprehensive, clear, and explicit finding:

"The issues thus presented in this case are: Did plaintiff perform labor for defendant as alleged? If he did, what was such labor reasonably worth? Did plaintiff pay out any money for and at request of defendant, as alleged? If he did, how much, and when he paid it, and whether or not a recovery of said money, or any part thereof, is barred by statute of limitations? Did defendant pay to plaintiff, or for and at request of plaintiff, any money, as alleged in the answer and counterclaim? If it did, how much?

"During the month of November, 1894, and from March 1st to November 30, 1895, plaintiff performed labor for defendant, as alleged, working generally two nights a week; it being his business, under defendant's instructions, to see that the lists of streets made out by defendant were cleaned and sprinkled on the nights designated therefor, exercise some supervision over a portion of the men employed in the work, and make his report next morning at the office of defendant. There was no agreement as to amount of his compensation, or when he was to be paid. His services were reasonably worth the amount charged therefor, viz., $114.38.

"Plaintiff paid out for and at the request of defendant the following sums of money:

                Nov., '94. To P. Drago.........  $10 50
                 "    '94. To P. Stasi.........   10 50
                 "    '94. To F. Asta..........    6 00
                                                 ______   $27 00
                Dec. 14, '94. To P. Stasi......  $ 5 00
                 "       '94. To P. Stasi......    8 50
                 "       '94. To A. Bosco......    7 50
                                                 ______    21 00
                                                          ______
                                                          $48 00
                

"The three...