Pryor v. Crum
| Decision Date | 18 January 1910 |
| Citation | 124 S.W. 597,146 Mo.App. 623 |
| Parties | WM. PRYOR et al., Respondents, v. MATHIAS CRUM, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted January 5, 1910 [Copyrighted Material Omitted]
Appeal from Audrain Circuit Court.--Hon. Jas. D. Barnett, Judge.
AFFIRMED.
STATEMENT.--By petition filed in this case in the circuit court of Audrain county, plaintiffs aver that in the years 1906-1907 they were engaged as partners in farming and doing certain work on two farms rented from defendant, the renting or leasing for 1906 being in the name of William alone, that for 1907 in the names of both. The work on the leased premises in both years however, is alleged to have been done by the two brothers as equal partners. Attached to the petition is the account which is for ordinary work on a farm, such as plowing, harrowing setting out trees, sowing seed, hauling lumber, rock, sand and posts, rebuilding sheds and barn, etc. The amount of labor claimed to have been done in 1906 is set out to be worth $ 82.75, that done in 1907, $ 64.83, making a total of $ 147.58.
The amended answer on which the case was tried was duly verified and denied the partnership, denied that the work done in 1906 was done by plaintiffs as partners, and states that if there was anything due for the work done that year it was due to William Pryor alone. "Wherefore," says this count of the answer, "defendant states there is a misjoinder of parties plaintiff." The second defense avers the leasing of the farm to William Pryor for a term beginning March 1, 1906, and ending March 1, 1907; that as part of the consideration for the lease William Pryor agreed to do certain work and that there was a complete settlement of all matters between William Pryor and defendant under that lease. The answer then admits that plaintiffs were partners, engaged in farming during the year 1907 and that in February, 1907 defendant leased to the plaintiffs two farms consisting of 250 acres, for a term of one year beginning March 1, 1907, and ending March 1, 1908; that as part consideration of said lease, plaintiffs agreed to prepare a small tract of land for an orchard and assist in setting out trees and to cultivate and care for and protect the same and also without charge to do all necessary hauling of lumber, posts, etc., and build all necessary inside fencing and necessary outside fencing, for which outside fencing plaintiffs were to receive 12 1-2 cents per rod and admits that plaintiffs during 1907 did perform labor upon the lands and did hauling thereon. Defendant avers that he has no knowledge or information sufficient whereof to form a belief as to what part of the labor performed or hauling was done under or by reason of the terms of the contract of lease made with plaintiffs for the year 1907, and has no knowledge or information as to whether plaintiffs furnished any seed oats and demands proof. Defendant then sets up four counterclaims or set-offs. First, that plaintiffs agreed to pay cash as rent for the grass land on the two farms, and to cultivate the remainder in corn and oats, for which parts so cultivated they agreed to pay, as rent, one-half of all the corn and two-fifths of all the oats raised during the year, and it is averred that plaintiffs failed and refused to cultivate all of said lands which were not in grass but allowed about 8 acres thereof to remain idle and unproductive; that the reasonable value of the eight acres for that year is $ 25, for which defendant asks judgment. As a second counterclaim defendant demands judgment for the value of 13 bushels of seed grass furnished on the farm in 1907, claimed to be worth $ 13. As a third counterclaim defendant avers that plaintiffs are indebted to him in the sum of $ 6 for hauling two loads of wheat and he asks judgment for that. The fourth counterclaim charges that during the year 1907, while plaintiffs were in possession of the farm, they, without consent of defendant, tore away and removed from the premises about 40 rods of woven wire fencing which inclosed 6 acres of new meadow and exposed the meadow to their stock, which they allowed to graze thereon to the damage of defendant in the sum of $ 18, and for which he also asks judgment.
The reply was a general denial.
The testimony in the case was directed to these issues, and it may be said of it, without going into a recital of it, that there was ample evidence to sustain the verdict at which the jury arrived.
At the instance of plaintiffs the court gave three instructions. The first, in substance, told the jury that if they found from the evidence in the case that the plaintiffs rendered the service sued for, or any part of it, at the request of defendant, then the law presumes that such service so requested by defendant is to be paid for, and the law implies a promise on the part of the defendant to pay for the same, and unless the jury find that the plaintiffs agreed not to charge for such service, then they will find for the plaintiffs for each item of service so rendered, for the fair and reasonable value thereof as shown by the evidence. To which was added: "Unless you further believe from the evidence that such items were included in a final settlement made between plaintiffs and defendant." The second instruction told the jury, in substance, that if they found from the evidence that the defendant requested the service or any part of it charged for by plaintiffs and promised to pay for the same, the jury should find for plaintiffs for each item so charged, unless they further found that such item or items were included in a final settlement made between plaintiffs and defendant. The third instruction told the jury that it was wholly immaterial in this case whether the farm was rented for the year 1906 to William Pryor alone or to him and his brother, Curtis Pryor, provided the jury found from the evidence that the services were rendered by both plaintiffs jointly with the knowledge of defendant. Defendant duly excepted to the giving of these instructions.
At the request of the defendant the court in a lengthy instruction set out the claim of plaintiffs, as that claim is itemized in the account filed, and totalling $ 82.75 for work and labor etc., in 1906, and $ 64.83, for work and labor done in 1907. The instruction then tells the jury that defendant admits plaintiffs were entitled to recover for certain items in the account, amounting to $ 35.58, and the jury are instructed to allow plaintiffs the sum of said items so admitted by the defendant. It then told the jury that defendant denies that he is liable to pay for the work and labor which plaintiffs alleged they performed in the year 1906 and that defendant pleads that under the rental agreement between them the plaintiffs agreed to perform such labor as a part of the rent which they were to pay for the use of the barn on one of the farms, and if the jury believed from the evidence that such was the contract and agreement between plaintiffs and defendant they could not allow anything to plaintiffs on account of any work and labor performed during the year 1906. The instruction taking up several items in detail states the facts which must be found to entitle plaintiffs to recover for them and tells the jury that in determining the case they should first ascertain the amount which they believed from the testimony under the instructions plaintiffs were entitled to recover and it would then be their duty to take up and determine the counterclaims or off-sets filed by defendant. It informs the jury that there are four separate and distinct counterclaims or off-sets and instructs the jury as to the first, second and third counterclaims. In giving the part of the instruction relating to the fourth counterclaim, the court added to it that they might give a verdict for the value of the grass consumed by plaintiffs' stock, "provided you further believe from the evidence that said fence, in connection with other fences completely inclosed said sixacre tract." These words last quoted were added by the court. The defendant also asked the court to instruct the jury that as to all the items claimed for the year 1906, defendant pleads a settlement and that if the jury believed there had been a settlement and adjustment of those matters, plaintiffs could not recover as to the 1906 items, to which the court added, "but before you can find that there was a settlement between plaintiffs and defendant, which would prevent a recovery on the ground of settlement alone, you must find from the evidence that both plaintiffs and defendant understood that the transaction was a full and complete settlement of all accounts and charges between them." Exception was duly saved to the modification of these two instructions. Defendant further asked an instruction to the effect that although the jury might believe that defendant agreed to pay for the work done in 1906, yet if they believed from the evidence that sometime in the early part of 1907, defendant asked the plaintiff to allow such amount to be credited on the rent for the year 1907, and plaintiffs agreed to do so, then the jury are instructed that plaintiffs cannot recover for the work of the year 1906 in this action, to which the court added, "unless you further believe from the evidence that afterwards defendant repudiated such agreement and denied any and all indebtedness to plaintiffs on account of such work." The abstract, as to this last instruction, notes that it is refused in its original form, "given as amended, permitted to be withdrawn by defendant in its amended form." The only exception to the refusal of instructions is at the end of all the instructions and is as follows: "To which action of the court in refusing said instructions defendan...
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