Miller v. Missouri Fire Brick Co.

• Decision Date: 25 May 1909
• Citation: 119 S.W. 976,139 Mo. App. 25
• Parties: MILLER v. MISSOURI FIRE BRICK CO.
• Court: Missouri Court of Appeals

119 S.W. 976

139 Mo. App. 25

MILLER v. MISSOURI FIRE BRICK CO.

St. Louis Court of Appeals. Missouri.

May 25, 1909.

1. APPEAL AND ERROR (§ 171) — REVIEW — THEORY OF CASE.

A case must be reviewed in the appellate court on the same theory on which it was presented at the trial; and hence where defendant in its counterclaim alleged that, relying upon plaintiff's fraudulent representations, it had paid him more than was due under a contract of employment, and misrepresentation was the only question it requested the court to submit as a basis for recovery, it could not on appeal predicate reversible error upon the court's failure to charge on its right to recover the payment on the ground of mistake.

2. JUSTICES OF THE PEACE (§ 178)—APPEAL—TRIAL—INSTRUCTIONS.

Even though a case originated in justice's court, where defendant filed a formal counterclaim under the statute, the parties were estopped from presenting by instructions other issues than those tendered.

3. TRIAL (§ 251)—INSTRUCTIONS—ISSUE NOT IN CASE.

It would be error for the court to submit to the jury defendant's right of recovery on a ground not pleaded or relied upon in its counterclaim.

4. PAYMENT (§ 85)—RECOVERY—MISTAKE OF FACT.

Where money is paid through mutual mistake, either law or equity will afford relief to the person making the payment, though no fraud of the other appears; the theory of law being that the minds of the parties did not meet upon a given subject-matter, because both were in error.

5. PAYMENT (§ 85)—RECOVERY—UNILATERAL MISTAKE.

The mistake of only one of the parties in paying money will not alone warrant a recovery by him; and hence, if a party to a contract paid the other party more than he was entitled to because of its mistake in assuming the other's false representations to be true and acting upon them, it could not recover as for mistake.

6. PAYMENT (§ 85)—RECOVERY—MISTAKE.

Where payments are made through mistake only of the party paying, recovery thereof in an action at law can be had only upon proof that the mistake was induced by the fraud or misconduct amounting to fraud of the other, who did not commit the mistake.

7. APPEAL AND ERROR (§ 994)—QUESTION OF FACT—CREDIBILITY OF WITNESSES.

The credibility of witnesses and the weight to be given to their testimony is exclusively for the jury in the trial court.

8. APPEAL AND ERROR (§ 1001)—REVIEW—VERDICTS.

Where a verdict is supported by substantial evidence, an appellate court will not interfere unless it clearly appears that the verdict is the result of passion, prejudice, or misconduct of the jury.

9. APPEAL AND ERROR (§ 930)—REVIEW — VERDICTS.

In determining whether a verdict is supported by substantial evidence, an appellate court will not consider the adverse party's evidence to the contrary, but will assume that of the successful party to be true, and will decide whether it alone constitutes substantial evidence.

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Action by Fred Miller against the Missouri Fire Brick Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Jamison & Thomas, for appellant. Henry Higginbotham and Robt. S. Harbison, for respondent.

NORTONI, J.

This action originated before a justice of the peace. The suit is on an account to recover for services rendered by plaintiff to the defendant in making retorts under an alleged contract with it, by which the price to be paid therefor was fixed at 40 cents per foot. In its answer the defendant denies that it contracted to pay plaintiff 40 cents per foot for his services, and alleges that, instead, it contracted to pay him the same rate as was then being paid by its competitor, the Laclede Fire Brick Company, for the same services, which turned out to be $2.85 per standard retort, or about 32 cents per foot. The answer further pleaded a counterclaim for the amount of $176.15, which defendant alleged had accrued to it against the plaintiff by reason of overpayments to him, induced through the fraudulent representations of the plaintiff to the effect that the Laclede Fire Brick Company was paying 40 cents per foot for like services. Plaintiff recovered both upon his cause of action and on the defendant's counterclaim. The defendant prosecutes the appeal.

It appears the defendant fire brick company is a manufacturer of brick, tile, retorts, and other earthenware. As we glean from the record, the retorts referred to are earthenware cylinders about nine feet in length. Plaintiff by profession is a retort maker. The evidence on his part tended to prove that in the latter part of February he was employed by defendant to make retorts for it at 40 cents per foot. He states that in a conversation had with the defendant's manager the manager stated that he desired to charge the retort maker with the responsibility of the retorts until after they were burned in the kiln, and were conveyed therefrom to the storehouse or into the cars. It appears that, unless the retorts are properly moulded, they are likely to crack in the kiln during the process of burning, and entail loss while being removed therefrom. Therefore, imposing responsibility upon the retort maker during the process of burning and their removal from the kiln induced better work in the moulding. Plaintiff states that he replied to defendant's manager that, if he should assume the responsibility suggested, he would charge 40 cents per foot for his services in making the same. In reply to this, defendant's manager said he would pay the plaintiff the same amount the Laclede Fire Brick Company were paying for making retorts. To this plaintiff replied that he would charge 40 cents per foot for the services, and assume the risks suggested, wholly irrespective of what the Laclede Company were paying for retort making, and that the defendant's manager agreed to this proposition, and told him to go to work. Plaintiff commenced work for defendant within a few days thereafter, and continued making retorts for several months, until the middle of July. The defendant paid him twice a month for the retorts made at the rate of 40 cents per foot. About the middle of July defendant's manager learned that the Laclede Company was paying $2.85 each for making retorts. Defendant thereupon refused to pay plaintiff 40 cents per foot thereafter, and tendered him payment at the rate of $2.85 per retort for those made during that month. This amount plaintiff declined to accept, quit the service, and demanded payment at 40 cents per foot for those made by him during the month of July, prior to the date on which the defendant had tendered at the rate of $2.85 per retort. The defendant's theory is that it did not contract to pay plaintiff 40 cents per foot, but, on the contrary, agreed only to pay him the amount which the Laclede Company was paying for making retorts, and that that question was left open, to be afterwards ascertained. Defendant's manager said that his time was so occupied during the season he had neglected to ascertain with certainty what the Laclede Company was paying until about the middle of July, and that the payments theretofore made to plaintiff at 40 cents per foot were made to him upon false and fraudulent representations by him to the effect that he had ascertained the fact, and that such was the price being paid by the Laclede Fire Brick Company. This suit is for the balance due the plaintiff at 40 cents per foot for retorts made by him, and not paid for immediately prior to the date the defendant discovered the rate being paid by the Laclede Company and tendered him a settlement at the same rate. There is no controversy in the case as to the number of feet, nor as to the number of retorts made. The entire controversy pertains to the contract price therefor. That is to say, if the contract was to pay plaintiff 40 cents, as he insists it was, then he is entitled to recover the amount he sues for; while, on the other hand, if the contract was to pay him at the rate the Laclede Company was paying—that is, $2.85 per retort—then the plaintiff is not entitled to recover, for the reason defendant had overpaid him for retorts already made sufficient to cover any claim he might have at that rate, and some more. The defendant's counterclaim predicates on its theory of the contract; that is to say, that defendant was to pay plaintiff the same rate the Laclede Company was paying, which turned out to be $2.85 per retort, and that, having been induced through the fraudulent representation of plaintiff that the Laclede Company was paying 40 cents per foot, it had overpaid him for retorts already made to the extent of $176.15, which amount it prayed to recover.

The issues touching the matter as to which theory of the case was correct were submitted to the jury by proper instructions, about which no complaint is made here. The jury found for the plaintiff on his cause of action, and also found for him on the defendant's counterclaim. By so doing it affirmed that the defendant agreed to pay plaintiff 40 cents per foot for making retorts, as claimed...