Pearce v. McIntyre

• Decision Date: 31 January 1860
• Parties: PEARCE, Respondent, v. MCINTYRE, Appellant.
• Court: Missouri Supreme Court

29 Mo. 423

PEARCE, Respondent,

v.MCINTYRE, Appellant.

Supreme Court of Missouri.

January Term, 1860.

1. Motions to strike out parts of pleadings should contain the parts sought to be stricken out, or those parts should be so designated that they can be readily ascertained.

2. It is not essential to an arbitration that it should adjust all matters in difference between the parties; an award determining a single one of several matters in difference may be final and conclusive so far as it goes.

Appeal from Holt Circuit Court.

This was an action to recover the value of carpentry work alleged to have been done by plaintiff for defendant. The plaintiff set forth in his petition a submission by plaintiff and defendant of the value of the said work to arbitration and an award made under said submission by which, as was alleged, it was adjudged and awarded that the sum of $801.79 was “due to plaintiff by said defendant for work and labor done at the special instance and request of said defendant.” Plaintiff also claimed in his petition the value of painting and glazing that had been included in the award. The defendant in his answer denied that the award was as alleged in the petition; denied any indebtedness for painting and glazing, and set up matters by way of counter-claim and offset. A portion of the answer was stricken out on motion of the plaintiff.

At the trial the submission was read in evidence. It submitted to the arbitrators to determine the “worth” of the carpentry work “according to the prices of the country.” Plaintiff offered in evidence the award, and it was admitted against the objections of defendant. This award, after affixing values to the various items of work, closed as follows: “Making the sum of $804.75, which we find for Nathan Pearce and against George McIntyre.” Evidence was also adduced tending to prove the charge for painting and glazing. The defendant introduced testimony tending to prove the offset or counter-claim set up in the answer. The court gave the following instruction at the instance of the plaintiff: “The award read in evidence is sufficient to prove the work done for defendant by plaintiff and the value thereof, with interest, unless they believe from the evidence that some part thereof has been paid, or unless defendant has established his counter-claim or some part thereof; and if so, they will deduct the amount so paid and the counter-claim so proved, and give a verdict for the balance, if there should be such balance.” The court refused the following instruction asked by defendant: “The jury will exclude from their consideration the paper read in evidence purporting to be an award, and signed by Thomas D. Walter and Franklin Hart as arbitrators.” Instructions asked by defendant with respect to his counter-claim and offset were given.

Crow & Loan, for appellant.

I. The court erred in admitting the award. There was a variance between it and the petition. There was no authority given to the arbitrators to find any indebtedness either way. It does not possess the requisites of an award in that it does not purport to determine finally any matters in difference between the parties. (1 Bac. Abr. 225, 222; 15 Mo. 540; 10 Mo. 308.) It is not based upon any submission and was made without authority. The instruction asked should have been given. The motion to strike out should have been overruled. The instructions given should have been refused. One case is stated in the petition and a different one is assumed in the instruction. (18 Mo. 403.)

Woodson, for respondent.

I. The petition is good. The award is sufficient evidence of the value of the work done. The law of the case was fairly put to the jury. The counter-claim of defendant was considered and allowed. The defendant was not aggrieved. (7 Mo. 497; 15 Mo. 400; 15 Mo....