R. L. Gibson & Brother v. Jenkins
| Decision Date | 01 December 1902 |
| Parties | R. L. GIBSON & BROTHER, Plaintiffs and Appellants, v. M. R. JENKINS, Defendant and Appellant |
| Court | Kansas Court of Appeals |
Rehearing Granted 97 Mo.App. 27 at 40.
Appeal fro Linn Circuit Court.--Hon. John P. Butler, Judge.
REMANDED (with directions).
Remanded.
A. W Mullins and Harry K. West for plaintiffs.
(1) The court erred in granting defendant thirty days within which to file his exceptions to the report of the referee. R. S. 1899 sec. 714. Maloney v. Railroad, 122 Mo. 106. It is not contended that the court may not, on its own motion, set aside a referee's report without the filing of any exceptions. But the action of the court in this case is not based upon its own motion but upon defendant's exceptions. Defendant's exceptions were filed out of time and in vacation and therefore formed no basis for the court's action. Moreover, the statute contemplates that the exceptions, if any, shall be speedily determined. To permit the trial court to grant one of the parties thirty days within which to file exceptions; to allow such exceptions to be filed in vacation, and to continue the case to another term so that the exceptions may be thus filed in disregard of the statute, is the exercise of arbitrary power which can not be approved. (2) The court erred in holding that plaintiffs' account, including the weighing, was not a running account. Ring v. Jamison, 66 Mo. 424; Chadwick v. Chadwick, 115 Mo. 581; Nedvidek v. Meyer, 46 Mo. 600; Ittner v. Association, 97 Mo. 567; McWilliams v. Allen, 45 Mo. 573. (3) The rule is now firmly established in this State that when there is nothing on the face of the petition or on the face of the contract sued upon which indicates that the contract sued upon is illegal or immoral, the facts constituting the illegality or immorality constitute an affirmative defense which must be pleaded. St. Louis A. and M. Ass'n v. Delano, 108 Mo. 217; McDearmott v. Sedgwick, 140 Mo. 172; Musser v. Adler, 86 Mo. 445; Moore v. Ringo, 82 Mo. 468; Sybert v. Jones, 19 Mo. 86; George v. Williams, 58 Mo.App. 138.
Wilson & Clapp for defendant.
(1) No court will lend its aid to one who founds his cause of action upon an immoral or illegal act. Hamilton v. Scull, 25 Mo. 165; Sumner v. Summers, 54 Mo. 340; Kitchen v. Greenabaum, 61 Mo. 110; Atlee v. Fink, 75 Mo. 100; Attaway v. Bank, 93 Mo. 485; Sprague v. Rooney, 104 Mo. 360; McDearmott v. Sedgwick, 140 Mo. 172; Haggerty v. Manufacturing Co., 143 Mo. 238; Tyler v. Larimore, 19 Mo.App. 445; Suits v. Taylor, 20 Mo.App. 166; Parson v. Randolph, 21 Mo.App. 353; Carter v. Shotwell, 42 Mo.App. 663; Board of Trade v. Brady, 78 Mo.App. 585. (2) That the contract sued on was immoral and illegal is disclosed by the testimony of R. L. Gibson. (3) Where evidence is admitted without objection, as if competent under a general denial, or as if specially pleaded, the defendant should not be prejudiced by the fact that the evidence was not competent under a general denial, or that it had not been specially pleaded. Stewart v. Goodrich, 9 Mo.App. 125; Carter v. Shotwell, 42 Mo.App. 663; Madison v. Railway, 60 Mo.App. 608. (4) This case involved the examination of long accounts on both sides. The court might lawfully direct a compulsory reference. Sec. 698, R. S. 1899; Wentzville Tobacco Co. v. Walker, 123 Mo. 662; Edwardson v. Garnhart, 56 Mo. 81; Smith v. Haley, 41 Mo.App. 611; Ice Co. v. Tamm, 138 Mo. 385; Francisco v. Rowland, 14 Mo.App. 600; Johnson v. Blell, 61 Mo.App. 37; Raines v. Lumpee, 80 Mo.App. 203. (5) Where the court may lawfully direct a compulsory reference it may act upon the evidence reported by the referee and find therefrom different conclusions of fact. Tobacco Co. v. Walker, 123 Mo. 662; Walker v. Hurlstone, 92 Mo. 327; Hardware Co. v. Walter, 91 Mo. 484; Bond v. Finley, 74 Mo.App. 22; Raines v. Lumpee, 80 Mo.App. 203; Johnson v. Ewald, 82 Mo.App. 276; Utley v. Hill, 155 Mo. 232. (6) In cases of compulsory reference the appellate court has the same power to review the findings of fact made by the referee or the court upon the evidence that it has in equity cases. Cahill v. McCornish, 74 Mo.App. 609; Raines v. Lumpee, 80 Mo.App. 203; Johnson v. Ewald, 82 Mo.App. 276; Small v. Hatch, 151 Mo. 300; Williams v. Railway, 153 Mo. 487. (7) It is immaterial whether the exceptions of defendant to the referee's report were filed in time or not. This being a compulsory reference case the report of the referee was advisory only, and the circuit court had the right of its own motion to change, modify and correct the findings of the referee. Smith v. Paris, 70 Mo. 615. (8) The defendant had four days in term after the report was filed in which to file his exceptions to the report. The report being filed on the last day of the August adjourned term, the defendant had the first four days of the next term in which to file his exceptions. Sec. 714, R. S. 1899. (9) Where a petition contains two causes of action, and the answer two or more separate counterclaims, a general judgment for the plaintiff is erroneous, and is ground for motion in arrest. McHoney v. Ins. Co., 44 Mo.App. 426; Com. Co. v. Railroad, 80 Mo.App. 164; Club v. Findlay, 53 Mo.App. 256.
--The plaintiffs sue as partners. The original petition was filed May 5, 1898. The amended petition on which the cause was tried was filed at the December term of said court for the same year. The cause was referred to a referee whose finding was duly reported to the court, to which exceptions were filed by both parties. To the action of the court upon said report and the judgment in the case both parties have appealed, filing a joint abstract of the case. Both petition and answer are quite lengthy and to each is attached a long account. Many questions have been raised which we will endeavor to examine.
Plaintiffs' amended petition is to the effect that at divers dates, beginning on the second day of October and ending on the first day of January, 1894, they sold to defendant goods and merchandise and did weighing on their scales for him in value to the amount of $ 437.22; that about October 5, 1892, they presented this account, except what accrued afterwards, to the defendant for payment, said account amounting at that time to $ 419.32; that owing to the fact that both plaintiff and defendant were embarrassed financially, caused by losses sustained by the burning of their property at Browning, Missouri, on April 27, 1892, it was agreed between them that plaintiff should borrow $ 225 from the Browning Savings Bank and that defendant would sign the note to secure the loan of the bank, as security, which he would ultimately pay, and which, when paid by him, was to be applied as a credit upon plaintiffs' said account; that such note was given and after having been renewed was finally paid by defendant on the eighth day of February, 1898, at which time, with accumulated interest, it amounted to $ 277.25; and that defendant is entitled to the credit of the amount so paid on said account.
The second count is substantially as follows: That on April 27, 1892, plaintiffs owned at Browning, Missouri, goods, wares, lumber and implements to the amount in value of $ 21,500 which was set fire to and destroyed by Alva C. Ross at the instigation of one William P. Taylor; that defendant owned property of the value of $ 1,500 which was also destroyed at the same time by the same agency; that plaintiffs and defendant, on or about October 10, 1892, entered into an agreement by the terms of which plaintiffs were to institute an action by attachment against said William P. Taylor to recover judgment for the loss they had sustained by said fire and that in such action plaintiffs would bear one-half of the costs and expenses incurred and the defendant would bear the other half of the same; that the proceeds of the litigation were to be divided equally between plaintiffs and defendant; that the suit was instituted and proper judgment obtained against said Taylor for $ 15,000; that execution upon said judgment was issued and levied upon certain real estate of said Taylor which was sold and bid in by defendant to be held in trust for plaintiffs and himself in pursuance of said agreement; that defendant has sold said land and realized therefrom the sum of $ 2,250 and has collected by way of rent on said property $ 241, making the total amount received by defendant under said agreement the sum of $ 2,491, one-half of which belonged to plaintiffs; that the defendant has paid out for costs and expenses in said suit the sum of $ 967.88, while the plaintiffs have paid out in the same behalf $ 370.70, making defendant's expenses exceed plaintiffs' in the sum of $ 597, which deducted from said amount recovered as aforesaid leaves a balance of $ 1,893.90, of which one-half is due from defendant to the plaintiffs.
A summary of the defendant's answer, relevant to the matter in dispute, is about as follows: A general denial, and allegations that it is not true that he entered into the agreement to borrow the $ 225 from the Browning bank, as stated by plaintiffs; that at that time he was not indebted to plaintiffs but that, on the contrary, they were indebted to him; that at the time of said fire plaintiffs owed the German-American Bank, of Fort Madison, with accrued interest $ 285 on a note which was payable to himself and which had been indorsed by him to said bank; that plaintiffs failing to pay said bank, it sued both plaintiffs and defendant and that the former having money enough to pay a part only on said note borrowed $ 225 from the Browning bank to pay the remainder, giving the $ 225 note mentioned in plaintiffs' petition with this defendant as security; and that said note...
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