Miller v. A. P. Green Fire Brick Co.

• Citation: 246 S.W. 960
• Decision Date: 02 January 1923
• Docket Number: No. 17340.,17340.
• Parties: MILLER v. A. P. GREEN FIRE BRICK CO.
• Court: Missouri Court of Appeals

246 S.W. 960

MILLER v. A. P. GREEN FIRE BRICK CO.

No. 17340.

St. Louis Court of Appeals. Missouri.

January 2, 1923.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by Robert H. Miller against the A. P. Green Fire Brick Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for appellant.

T. J. Hoolan, of St. Louis, for respondent.

BIGGS, C.

This action in two counts resulted in a verdict and judgment for plaintiff in the sum of $557.50 on the first count. On the second count there was a verdict and judgment for defendant. Defendant appeals, claiming that the court erred in denying defendant's request to file an amended answer and counterclaim at the conclusion of all the evidence.

The first count is based upon an account stated in the sum of $500 arising from plaintiff's claim for salary and commissions as a traveling salesman for defendant prior to April, 1917. The second counts seeks to recover $118.89 due upon a salary contract, beginning April 1, 1917, in which plaintiff was employed by the defendant, and in which it was alleged the defendant promised to pay plaintiff, in addition to a salary, commissions on all sales made by plaintiff, which defendant guaranteed would be not less than $50 a month; that plaintiff rendered for the months of April, May, and June, 1917, the services for which he was employed, whereby defendant became indebted to plaintiff in the sum of $150 on account of said guaranty of commissions; that plaintiff demanded said sum from defendant, and that no part thereof has been paid except the sum of $31.11, leaving a balance due plaintiff of $118.89.

The suit was filed on March 16, 1918, and the defendant on April 7, 1919, filed answer in the form of a general denial. The cause was heard on November 4, 1919, and, after the evidence had been submitted to the jury defendant asked leave to file an amended answer, which contained a counterclaim. This the court refused to permit, and this action is assigned as error, being the sole point involved in the appeal.

The question of allowing amendments to pleadings during the trial under section 1274, Revised Statutes of Missouri 1912, is a matter concededly within the discretion of the trial court, and, unless the facts clearly demonstrate that the court abused such discretion, the appellate court would not be warranted in interfering with the ruling made. The first answer of the defendant on which the cause went to trial was a general denial. The amended answer which was sought to be filed sets up a counterclaim, and asks affirmative relief against the plaintiff. The amended answer not only substantially changed the defense, but it...