Randolph v. St. Joseph, Stanberry & Northern Railway Co.
| Decision Date | 07 May 1906 |
| Citation | 94 S.W. 309,118 Mo.App. 460 |
| Parties | KENDALL B. RANDOLPH, Respondent, v. ST. JOSEPH, STANBERRY & NORTHERN RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Chesley A. Mosman, Judge.
Eastin Corby & Eastin for appellant.
(1) The court erred in excluding the petition in the case of Kendall B. Randolph v. Alice M. Butler and George C. Sims. The evidence was material and relevant and admissible under the general denial. Turner v. Thomas, 10 Mo.App. 338; Greenway v. James, 34 Mo. 326; Corby v Weddle, 57 Mo. 452; White v. Middleworth, 42 Mo.App. 373; Madison v. Missouri Pacific Ry. Co., 60 Mo.App. 606; Jones v. Rush, 156 Mo. 371; Clemens v. Knox, 31 Mo.App. 199; Wilkerson v. Farnham, 82 Mo. 672. (2) The testimony of Mr. Sims and Mrs. Butler showed or tended to show that from the beginning the services rendered by the plaintiff constituted a continuous series of transactions. (3) The burden was upon the plaintiff to prove the implied promise on the part of the defendant to pay this item. The most diligent search of the record fails to disclose a word or an act that would authorize the conclusion that the defendant agreed to pay it. There was a total failure of proof and the instruction should have been given.
D. C Reeves and W. H. Haynes for respondent.
(1) It is contended that the petition in the case of Kendall B. Randolph v. Alice M. Butler and George C. Sims should have been submitted to the consideration of the jury. As shown by the additional abstract furnished by respondent the respondent was cross-examined as to the items of the suit against Alice M. Butler and George C. Sims. By referring to the petition in that case it will be noticed that none of the items charged for in that petition were embraced in the petition in the case at bar. (2) That petition in no manner could throw any light upon the issue as to whether or not the services sued for were performed, or as to their value, or as to whether or not they were performed for the defendant company.
This is a suit against defendant for services alleged to have been rendered by the plaintiff in his professional capacity as a lawyer. He claims compensation for such services rendered on July 7, 8 and 9, 1904, in preparing a form of contract for right of way for defendant company's proposed railroad, option contracts, and forms for deeds, and superintending the printing of the same, which he alleges were of the value of $ 150; that in July, 1904, he appeared before the streets and alleys committee of the council of the city of St. Joseph, Missouri, on behalf of defendant, where he rendered services of the value of $ 15; that in July, 1904, he appeared before the commercial club of said city and made an argument for the defendant, which services he alleges were of the value of $ 20; that at the request and on its behalf, he prepared an ordinance for a franchise from the northeast part of the city to Twelfth street and down the same, and other streets, and presented the same to the city council of said city, which he alleges was reasonably worth $ 150; that on October 28, 1904, he prepared two forms of option contracts for the use of one, Fred Roth, in buying city right of way, the same to be used for and on behalf of defendant, of the alleged value of $ 25; that in November, 1904, he prepared a petition and order for a right of way across the roads on the right of way of the defendant's proposed railway through Buchanan county for presentation to the county court of said county, which were of the alleged value of $ 25; that he also prepared a similar petition to be presented to the county court of Gentry county, of the alleged value of $ 25; that on December 1, 1904, he prepared a similar petition to be presented to the county court of Andrew county, of the alleged value of $ 50; that in January, 1905, plaintiff consulted and advised with defendant's officers in regard to the form of a franchise across streets and alleys in the city of St. Joseph, of the alleged value of $ 50; and that on January 6, 1905, he consulted with defendant's officers one-half day in reference to certain troubles, which services he alleges were of the value of $ 20.
It is admitted by defendant that plaintiff's proof, except as to one...
To continue reading
Request your trial