Nave v. Dieckman

Decision Date18 January 1919
Docket NumberNo. 2087.,2087.
Citation208 S.W. 273
PartiesNAVE v. DIECKMAN.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by J. H. Nave against W. C. Dieckman. Judgment for plaintiff, and defendant appeals. Reversed.

STURGIS, P. J.

The plaintiff sued in a justice court, alleging in the statement of his cause of action that he had been a tenant on defendant's farm, and that a dispute arose in July, 1915, between him and defendant, his landlord, touching the amount, if any, due plaintiff from defendant for clearing land on said farm; that all matters of controversy concerning work and labor performed in clearing said land was submitted by agreement between them to three named arbitrators, who made an award that defendant owed plaintiff $110 for work and labor performed in clearing such land, which award was filed as Exhibit A, and made part of the petition; that plaintiff kept and performed all obligations imposed on him by such reward, but that defendant failed and refused to pay the $110 as provided by the award or any part of same. Prayer is made for judgment for $110, with interest and costs. Trial was had on this statement in the justice court and after appeal in the circuit court, resulting in a judgment in plaintiff's favor for $110 and interest, and the case is here on defendant's appeal.

The record discloses that on the trial in the circuit court the plaintiff put in evidence the agreement for submission to arbitration, the oath of the arbitrators, and the award of such arbitrators, all duly signed. Plaintiff then rested his case, and defendant offered a demurrer to the evidence, which was later overruled, and exceptions saved. The submission to arbitration recites that a controversy exists touching what amount, if any, is due plaintiff for work and labor performed in clearing land, and agrees to submit such controversy to the persons named as arbitrators, and the parties (plaintiff and defendant here) agree to stand to and abide the award to be made by the arbitrators,

"reserving to each of the said parties the right to appeal to the courts of Stoddard county in the event either of the said parties should deem himself aggrieved by the award of said arbitrators."

The award of the arbitrators recites their taking the oath, notifying the parties, hearing the evidence, viewing the land, and

"do hereby award and determine that the said Nave has kept and performed all of his obligations and duties under his contract to clear land upon said farm, and that the said Dieckman has not kept and performed all of his agreements and duties toward the said Nave in the premises. Wherefore we, the said arbitrators, hereby award that the said Dieckman does owe and stand indebted to the said Nave in the sum of $110. Said Nave to complete his 60 acres of ground according to contract. What we mean in this decision is that the balance of the clearing be done, but omit the cultivation. Clearing to be done, just as the balance has been done, in order to get the full 60 acres in cultivation."

When the demurrer was offered to plaintiff's evidence, the court remarked that:

"This award shows that Mr. Nave is to complete 60 acres of ground, and you cannot recover unless you prove by competent testimony that he did complete it. If you have any competent testimony to show that Mr. Nave completed that contract, you may offer it."

The plaintiff then offered evidence tending to show that he had performed some further work after the award was made and thereby fully performed his contract as to clearing 60 acres of ground. On cross-examination plaintiff testified that he was to clear SO acres of land at a certain price, and if he put it in cultivation he was to get $50 extra. He claimed that he had put in cultivation all except about 1 acre, and would have put that in, had not defendant objected to doing it so late in the season. It was shown that this took place about July 2d, and plaintiff was to plant the land in corn. The...

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    • United States
    • Wyoming Supreme Court
    • October 16, 1928
    ... ... Co. v. Rae, (Nev.) 218 P. 93; Western Cornice Co. v ... Meyer, (Minn.) 76 N.W. 23; Casazza v ... Rosenblum, 180 N.Y.S. 253; Nave v. Dieckman, ... (Mo.) 208 S.W. 273; Walrath v. Ins. Co., (N ... Y.) 110 N.E. 426. There is no evidence showing liability ... of Petry on ... ...
  • Mooney v. Monark Gasoline & Oil Co.
    • United States
    • Missouri Supreme Court
    • September 16, 1927
    ... ... have known that gasoline has such qualities. Chitty v ... Iron Mt. Ry. Co., 148 Mo. 64; Nave v. Dieckman, ... 208 S.W. 273; Collins v. Hutchings, 194 S.W. 733; ... Secs. 1272, 1273, R. S. 1919; Compton v. Railroad, ... 147 Mo.App ... ...
  • Peters v. McDonough
    • United States
    • Missouri Supreme Court
    • March 31, 1931
    ...father. Such a discrepancy between pleading and proof is fatal to the case. Collins v. Hutchings (Mo. App.), 194 S.W. 733; Nave v. Dieckman (Mo. App.), 208 S.W. 273. (b) the petition comprehends no such claim as disclosed by this evidence was urged upon the court below in numerous objection......
  • Robertson v. Vandalia Trust Co.
    • United States
    • Missouri Court of Appeals
    • January 3, 1934
    ...49 Mo.App. 255; Compton v. Railroad, 147 Mo.App. 414; Smith v. Pullman Co., 138 Mo.App. 238; Collins v. Hutchings, 194 S.W. 733; Nave v. Diekman, 208 S.W. 273; v. Harmon, 261 S.W. 348; Duncan v. Gage, 250 S.W. 647; Jennings v. Cherry, 257 S.W. 438; Grafeman Dairy Co. v. Northwestern Bank, 2......
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