Pearce v. Rogers

• Citation: 15 S.W.2d 874
• Decision Date: 30 March 1929
• Docket Number: 4462
• Parties: PEARCE v. ROGERS et al.
• Court: Missouri Court of Appeals

15 S.W.2d 874

PEARCE v. ROGERS et al.

No. 4462

Court of Appeals of Missouri, Springfield

March 30, 1929

Appeal from Circuit Court, Butler County; Chas. L. Ferguson, Judge.

Action by A. G. Pearce against I. W. Rogers and another, wherein defendants interposed a counterclaim. Judgment for plaintiff and against defendants on the counterclaim, and defendants appeal. Reversed and remanded.

Henson & Woody, of Poplar Bluff, for appellants.

Cope & Tedrick, of Poplar Bluff, for respondent.

OPINION

COX P. J.

Action upon quantum meruit for value of services performed by plaintiff for defendants. The answer admitted the employment of plaintiff, but alleged that it was for an agreed wage of $150 per month, and further alleged that plaintiff had been paid in full, and also that plaintiff had received and converted to his own use money in the sum of $900 in excess of the amount due for wages, and asked judgment against plaintiff upon counterclaim for that sum. The jury found for plaintiff for $250, and found against defendants on the counterclaim. Defendants appealed.

Plaintiff was employed to go to Blytheville, Ark., to try to purchase three moving picture theaters located there and to rent the buildings in which they were operated. Plaintiff went to Blytheville, and, during the time of his employment defendants purchased two of the theaters, but did not secure the other one. Whether defendants’ purchases were the direct result of plaintiff’s efforts we do not deem very material.

Plaintiff, in order to prove the various transactions between the parties introduced in evidence a list of sheets from the books of a bank in which deposits were made containing 28 items; 22 checks drawn on the account; a hotel register containing 37 items. Defendants offered 15 checks in evidence. This made a total of 103 items that the jury were required to carry in their memory and consider in arriving at a verdict, a task that was impossible of performance. From the number of these items it would seem to be a very proper case to refer to a referee for an accounting, but neither party asked for a reference, and the whole matter was submitted to the jury.

Mrs. May McCutcheon, a witness for defendant, who had charge of the funds of defendants at Blytheville, at least a part of the time, testified that plaintiff asked her to give him a check for $170, payable to Watkins & Pate of Little Rock, Ark., and that she wrote the check and gave it to him. After defendants rested, the plaintiff was recalled and testified as follows: "I did not know Watkins & Pate. I did not know that they are attorneys for the insurance company I worked for. I did not give them that check and had nothing to do with it. That check you have, dated March 2, 1926, payable to Watkins & Pate and marked Exhibit A, I know nothing about it. I am swearing that I know nothing about it. I did not ask Mrs. McCutcheon to write the check. She did not give it to me and I did not turn it over to Watkins & Pate nor to anyone else."

When plaintiff was on the stand, in chief he stated in his cross-examination that he had never seen this check and did not know anything about it.

In defendants’ motion for new trial, they alleged that the verdict was based upon perjured testimony given by the plaintiff at the trial in relation to the above check and in some other...