Oldham v. Henderson

• Decision Date: 30 April 1836
• Citation: 4 Mo. 295
• Parties: OLDHAM v. HENDERSON.
• Court: Missouri Supreme Court

4 Mo. 295

OLDHAM

v.HENDERSON.

Supreme Court of Missouri.

April Term, 1836.

APPEAL FROM THE PIKE COUNTY CIRCUIT COURT.

Henderson brought an action before a justice of the peace, for the value of fifty days work at 75 cents per day. Henderson had judgment before the justice for his demand. Oldham appealed to the Circuit Court where Henderson again had judgment. A point arises on the record, on the motion for a new trial. The defendant moved for a new trial, and assigned several reasons, alleging that the court erred in matters of law, but these reasons, one only excepted, have no foundation [in] the record. It is also alleged that the verdict is against evidence. This motion was overruled. The evidence given for the plaintiff, was that Oldham and one Herring were engaged in building a wind mill as partners, that Henderson went to Oldham to engage to work as a common hand, and said his price per day for labor was 75 cts., and that he would not work for any man for less. Oldham offered him 62 1/2 cts. per day, which he refused; Oldham then told him to come back the next day, which he did, and he then sat in and worked fifty days. The plaintiff also proved that other hands were paid 75 cts. per day, and that some were paid more.

The defendant proved, that Henderson was not as skillful as some employed but that he made a hand. It was also proved that about the time Henderson began to work, Herring met him on the road to Oldham's, and that Henderson speaking on the subject, said he could work for less than 75 cts. per day, that Herring told him to go to Oldham, and that whatever Oldham agreed to, he would agree to. This is all the evidence in relation to the per diem allowance, except that there was proof that some bargain was made. On the trial in the circuit, the plaintiff admitted that he had received of the defendant, a few days after he began to work, $4 25, but that he borrowed it of Oldham. It is insisted by the counsel for Oldham, that the court ought to have allowed the $4 25, as a payment, which the court failed to do. On the other side it is insisted that this was not to be allowed as a payment, nor could it be allowed as a set-off, unless the set-off had been relied on at the trial. In this case there was evidence that Henderson had received some money of Oldham, but on what account or how much does not appear, except by his admission on the trial.

F. P. WRIGHT, for Appellant. This was an action commenced before a justice of the peace by Henderson, against Oldham for fifty days work at seventy-five cents per day. The parties regularly appeared before the justice, who gave judgment against the defendant, for $37 50, being the full amount of the account as charged; and from this judgment, defendant regularly appealed to the Circuit Court; as the defendant's defense before the justice, was not reduced to writing, it does not appear on the record. At the commencement of the trial de novo before the Circuit Court, defendant offered a plea that the services if rendered at all, were rendered for said Oldham, and one Robert Herring as partners, the account filed takes no notice of the other partner. He also stated that plaintiff had, before the commencement of the suit, and while at work for them, received $4 25 of defendant; desired to prove the same, and to have it taken into consideration in the judgment; the court refused the plea in abatement, and ordered the trial to proceed without receiving it. The plaintiff then introduced his evidence which went fully to show that plaintiff had performed no labor for defendant except what he performed for Oldham and Herring as partners; that he knew this fact and looked to each for his pay. The defendant objected to the services proved, being received in evidence, on account or a variance from those charged, which objection was overruled by the court; and the decision excepted to by defendant.

Defendant then proved that he had let plaintiff have $4, 50 before commencement of this suit,and while he was at work for them: and asked the court to allow the same, which the court refused, but gave judgment against the defendant for fifty days work, at 75 cts. per day (though the evidence did not justify the court in giving more than 62 1/2 cents per day), making $37 50, the same as given by the justice; defendant moved for a new trial, which was overruled; the points were saved by bill of exceptions, and the case brought here on an appeal. The errors of the court below, are: 1st. The court erred in not receiving the plea in abatement. The statute has not altered the common law in respect to joint and several contracts. This was a contract made by plaintiff with two partners, “all contracts with partners,” says Lord Mansfield, “are joint and several, every partner is liable to pay the whole.” Rice v. Shute, 5 Burr 2611; Stater v. Lawson, Eng. C. L. R. 409. Hence the common law has not been changed, and it has never been denied that a defendant may, if he choose plead in abatement, that he has a partner not sued. At common law, suit could not be brought on a joint contract, against one partner unless he was a surviving partner; yet on a joint and several contract, suit might be brought against one of the promisors, and the judgment would have been good, unless the defendant saw fit to have his partner brought in, and this he could only do by plea in abatement.--2 B. and P. New R. 371, Powel v. Layton. In an action against one of several partners, Lord Mansfield in sustaining a plea in abatement, that there were other partners not joined, observed, “it is true that a plea in abatement usually meets with no favor as being a dilatory plea, yet it is not in all cases a dilatory plea, but may be necessary to a due protection of a defendant.” It is material to him in this case, because if a verdict be obtained against all the partners, it is at least prima facie evidence that they are all liable to a contribution, and it precludes any of them from resisting contribution, on the ground that there was not a full and fair defense to the action; and so in this case, Oldham is charged individually, no mention is made for whom or when the labor was performed; the evidence to prove his services was verbally given, and it might be an impossibility to obtain contribution by suit. Besides, the statute says that when suit is brought against one of several, it shall be brought on the same contract.

2nd. The proof did not agree with the charge; defendant is charged individually; proof was that the services were performed for him and another, here then was a variance, and the evidence should have been rejected. An account filed before a justice should contain the certainty of a bill of particulars, and if plaintiff had wished to have given evidence of labor performed for the firm, he should have stated it to have been so performed in his account. The session acts of 1826-7, page 32, say “that the plaintiff shall file the account on which the demand is founded.”

3rd. The $4 25 advanced by Oldham to plaintiff should have been allowed, and the court did wrong in rejecting it. Herring, a witness introduced by plaintiff, stated that plaintiff told him that he had got some money of defendant, but did not state how much; and plaintiff admitted at trial, that he had got $4 25 of defendant before the commencement of this suit, and a few days after he commenced the work, but stated that he had borrowed the same of said Oldham, and had ever been willing to pay the same. On an appeal from a justice of the peace, the trial is had de novo, and the laws to guide the justice of the peace are to be the rules of action for the Circuit Court. The Rev. Code of 1825, did not require that an off-set before a justice of the peace should be in writing, the same may be pleaded is the language, and pleading before a justice or in a trial de novo before the Circuit Court, may be ore tenus, and even then need not be formal: Rev. Code 1825, 478. The session acts of 1831, p. 50, makes it the duty of justices of the peace, to hear and determine actions before them, according to equity and good conscience, and to give judgment in all things according to right and justice in a summary way, without the form of pleading: and on appeals the same rules are to govern the Circuit Court. The defendant, then having proved that he had let plaintiff have $4 50 which had not been otherwise paid, the same should have been allowed as so much in satisfaction of his labor.

4th. The evidence did not justify the court in giving more then sixty-two and a half cents per day to plaintiff, and the court did wrong in allowing seventy-five cents per day. Herring, the partner of Oldham, who was introduced as a witness by the plaintiff, stated that plaintiff came to him to hire out, stated that he could work for less than seventy-five cents per day, that he sent him to Oldham, to make the bargain. The witness present when he came to Oldham, says that Oldham offered plaintiff 62 1/2 cents per day, and the plaintiff asked 75. There was no bargain then made, but was next day when nobody was present. His services were not proved to have been worth 75 cents per day, and Herring stated that they gave 75 cents for hands who knew rather more than plaintiff about the work, and taking the evidence together, it goes stronger to prove that he was not to have but 62 1/2 cents per day, than 75 cents.

CHAMBERS, for Appellee. This was an action commenced by Henderson against Oldham, for fifty days work, at 75 cents per day. The suit was brought before a justice of the peace, and Henderson had judgment, from which Oldham appealed to the Circuit Court; on the trial in the Circuit Court, Henderson again had judgment, and Oldham appealed to this court. Upon the trial in the Circuit Court, Henderson proved the services and the price, and that he was employed to work by Oldham. It was also proved by the same witness, that Oldham and one Herring, were in partnership, building...