Mueller v. Rock

• Decision Date: 08 March 1923
• Docket Number: No. 17665.,17665.
• Citation: 249 S.W. 435
• Parties: MUELLER v. ROCK.
• Court: Missouri Court of Appeals

249 S.W. 435

MUELLER v. ROCK.

No. 17665.

St. Louis Court of Appeals. Missouri.

March 8, 1923.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published.",

Action by Jacob Mueller against John Rock. On appeal from a justice's court where the action was begun, to a circuit court, judgment was for defendant on plaintiff's cause of action, and on notes given defendant by plaintiff, and against defendant on his remaining counterclaim, from which plaintiff appeals. Reversed and remanded.

Fred J. Hoffmeister, of St. Louis, for appellant.

DAUES, J.

This action was begun before a justice of the peace upon a statement of account for work and labor performed by plaintiff for defendant as a carpenter. The total amount of the account was $352.58. The defendant filed his answer and counterclaim, the answer being a general denial; the counterclaim prayed for judgment against plaintiff on two notes for $100 each. There was a further counterclaim for some items of work and labor rendered by defendant for plaintiff. The cause having been appealed to the circuit court, a trial was there had without a jury, resulting in a judgment in favor of defendant on plaintiff's cause of action and in favor of defendant on his two notes, as set out in his counterclaim, and against defendant on his remaining counterclaim. Plaintiff appeals.

The record discloses that but one witness testified, and that was plaintiff himself. From his testimony it appears that plaintiff, a carpenter by trade, entered into an agreement with defendant by which he was to build a house, or at any rate to work on same, for defendant, and for which work he was to receive 65 cents per hour. It is not disputed that plaintiff performed carpenter work for defendant. The work would be done at intermittent periods, and as he worked along plaintiff would keep a record of the number of hours he worked on slips of paper which he would then copy into his book known as a time book. He would copy this time into the time book from the slips, sometimes daily and sometimes weekly. Plaintiff says the original slips became lost or were destroyed before the suit was instituted, and, it seems, long before this litigation was contemplated. At the time of the trial of the case the time book constituted the only evidence in existence which plaintiff had which would show the number of hours that he worked for defendant. Defendant objected to the use of this book for the purpose of refreshing plaintiff's memory and the court sustained such objection. The court also refused to allow said time book to be admitted as evidence. Thereupon plaintiff was asked this question. "Mr. Mueller, do you remember from your best recollection that you put in about 365 hours?" He answered: "Something like that." Upon motion of defendant's counsel this answer and other like testimony was stricken out, the court ruling: "a must be stricken out. The man hasn't any independent recollection whatever." Plaintiff admitted that he owed the two notes of $100 each pleaded in def...