Reed v. Young

• Citation: 154 S.W. 766,248 Mo. 606
• Parties: REED et al. v. YOUNG.
• Decision Date: 28 February 1913
• Court: United States State Supreme Court of Missouri

154 S.W. 766

248 Mo. 606

REED et al. v. YOUNG.

Supreme Court of Missouri, Division No. 1.

February 28, 1913.

Motion to Modify Denied March 15, 1913.

1. REFERENCE (§ 2) — ACTIONS AT LAW — STATUTES — SCOPE.

The object of Rev. St. 1909, § 1996, providing that in certain cases there could be a reference in actions at law, was to enable the circuit judge on the trial of legal actions to refer certain issues in invitum as to one or both of the parties, and was not designed to regulate the conduct of suits in equity; such power being a distinct function of chancery.

2. REFERENCE (§ 99) — COMPULSORY REFERENCE — REVIEW BY JUDGE.

When a compulsory reference may be had under Rev. St. 1909, § 1996, giving courts of law the right to refer certain issues, the court may exercise the supervisory power of a chancellor over the findings, whether the issues submitted be legal or equitable, or whether submitted without the consent of the parties or not; but, where there is a reference by consent of other issues than those which are subject to compulsory reference, the report of the referee stands as the verdict of a jury.

3. APPEAL AND ERROR (§ 1017) — REVIEW — REFERENCE — STATUTES.

The appellate courts have the same power to review the findings of a referee in the instances mentioned in Rev. St. 1909, § 1996, providing that in actions at law reference may be ordered: (1) Where a long account is to be

examined; (2) an account to be taken for the information of the court; or (3) where a question of fact collateral to the pleadings arises, which is exercised on appeals of equitable actions.

4. REFERENCE (§ 8) — RIGHT OF TRIAL BY JURY — CONSTITUTIONAL LAW — COMPULSORY REFERENCE — "LONG ACCOUNT."

Where the issues in a case were only as to damages for incompetence, negligence, and wrongdoing of plaintiff, there could be no compulsory reference, no matter how numerous were the items of damages, since such demands originated ex delicto, and could not be a "long account" within Rev. St. 1909, § 1996, providing that in courts of law, where there was "a long account," a reference could be had, and since to construe otherwise would violate the right of trial by jury.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by George F. Reed and another against Clymena Alice Young. Judgment for plaintiffs, and defendant appeals. Reversed.

The plaintiffs, a firm of architects, sued the defendant in two counts: (1) For a breach of an alleged oral agreement to pay them, for superintending the construction of a large residence according to the plans theretofore prepared, a sum equal to 2½ per cent. of the total cost of such residence, and a sum equal to 5 per cent. of the cost of a lodge or gate entrance, for which latter structure plaintiffs also were to make plans, specifications, and details; that the amounts so due were $150 and $900 respectively, totaling $1,050, for which judgment was prayed. (2) The same services were alleged to be performed at the special instance and request of defendant, and a judgment for the same amounts was demanded as the reasonable value of such services. To this petition the defendant answered: (1) Denying all the allegations contained in both the first and second counts, and answered further, in substance, that defendant entered into a contract with a member of the plaintiff firm to superintend the construction of her residence; that said firm avouched its competency as architects, and that the member thereof with whom defendant contracted was possessed of skill, ability, and taste to enable him to perform the services of superintending architect in a proper manner, and that he would discharge those duties; that this member of the plaintiff firm agreed personally to supervise the work and to keep proper account of the amounts earned by the laborers and contractors and the material furnished, and to protect defendant from mechanics' and laborers' liens by giving her timely notice so that she could retain the proper amount to answer for these; that he would let all the contracts; that he would warrant that all the plans, details, specifications, and drawings should be skillful and properly made and done, and should not be changed except by the consent of the defendant; that his employment should continue only so long as defendant might desire. Defendant averred that, notwithstanding such covenants, the said member of the plaintiff firm was incompetent to perform the duties assumed by him, and by his negligence, unskillfulness, and fraud injured and damaged defendant in 22 instances, each of which is specifically stated in the answer by number and with a separate itemization of the amount of each particular loss, in sums varying in amounts, but aggregating $10,537.61. Each and all of said items of defense were, by reiteration, made the basis of damages for the respective amounts by way of a counterclaim. The plaintiff took issue by reply. The cause, over the objection of defendant, was sent to a referee. Defendant excepted on the ground that it deprived her of the constitutional right of a jury, and saved the part for review by a term bill of exceptions, and at every step in the cause and in the motion for new trial.

The amended report of the referee contains a finding that the contract set up in plaintiffs' petition was confessed in the answer; that it was entered into with defendant in February, 1904, and continued until December, 1904, when the representative of plaintiffs was discharged before the full performance of the work for which plaintiffs were engaged; that the cost of the residence building was $28,000; that the cost of the construction of the lodge was $800; that plaintiffs were entitled to receive 5 per cent. upon the $800 "as the reasonable value of plaintiffs' work upon this part of the work"; that plaintiffs were entitled to 2½ per cent. of $28,000 "as the reasonable value of plaintiffs' work performed in the superintending the superstructure of the residence." The report further disclosed that the referee found against the 22 separate defenses included in the answer, and against each of said items as the basis of the counterclaim filed by defendant, and that plaintiffs were entitled to receive $740. This report was confirmed, and judgment was rendered thereon. Defendant excepted to the report and its confirmation, and has appealed to this court on the ground, among others, that a constitutional question arose upon the action of the court in depriving defendant of a jury trial.

Geo. Pepperdine and Henry C. Young, both of Springfield, for appellant. V. O. Coltrane and Edgar P. Mann, both of Springfield, for respondents.

BOND, J. (after stating the facts as above).

1. We do not understand it to be now claimed that the statute permitting a trial court, upon the application of either party or of its own motion, to direct a reference in the cases specified, of any specific question of fact or the whole issues, is an unconstitutional enactment, since that point has been heretofore disapproved. Tinsley v. Kemery, 170 Mo. loc. cit. 317, 70 S. W. 691; Ice Co. v. Tamm, 138 Mo. 385, 39 S. W. 791. But we take the position of appellant to be that the statute (R. S. 1909, § 1996) has been...