Reutner, Klaus & Co. v. Nelson Chesman & Co.

• Decision Date: 02 October 1928
• Docket Number: No. 19796.,19796.
• Citation: 9 S.W.2d 655
• Parties: REUTNER, KLAUS & CO. v. NELSON CHESMAN & CO.
• Court: Missouri Court of Appeals

9 S.W.2d 655

REUTNER, KLAUS & CO. v. NELSON CHESMAN & CO.

No. 19796.

St. Louis Court of Appeals. Missouri.

October 2, 1928.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by Reutner, Klaus & Company against Nelson Chesman & Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded with directions to enter new judgment if plaintiff files remittitur, otherwise reversed and remanded for new trial.

Moore & Fitch, of St. Louis, for appellant. Foristel, Mudd, Blair & Habenicht, of St. Louis, for respondent.

BENNICK, C.

This action was instituted upon the filing by plaintiff of its petition, in which it alleged that on or about May 2, 1922, defendant had employed it to furnish an income tax analysis, for which defendant had promised to pay plaintiff at the rate of $75 a day for the combined services of two men; and that plaintiff had duly performed such services for defendant, in that two men had worked and rendered services for a total of 39½ days, whereby the sum of $2,962.50 was due and unpaid, for which sum, together with its costs, plaintiff prayed judgment. To such petition, an answer in the form of a general denial was duly filed.

Upon a trial of the issues involved, the jury rendered a verdict in favor of plaintiff, assessing its recovery at the sum of $2,962.50, with interest thereon at the rate of six per cent. per annum from August 21, 1922, amounting to $659.15, aggregating the sum of $3,621.65. Judgment was duly rendered; and, its motion for a new trial having been filed and overruled, defendant has appealed.

The evidence for plaintiff purported to disclose, in substance, that prior to May 2, 1922, the United States government had demanded the payment to it by defendant of the sum of $16,000 by way of additional income taxes; and that plaintiff was employed to audit the books and records kept by defendant with the view of determining the justness of the claim. After such services had been performed, a report was rendered to defendant by plaintiff, finding that only the sum of $7,404.66 was actually due; and at this juncture of the proceedings, plaintiff's connections with the case were finally terminated, when defendant refused to give a power of attorney to one of plaintiff's officers, in order that the latter might be empowered thereby to represent defendant in the adjustment of the claim with the proper federal authorities.

The dispute between the parties does not concern the fact that such a report was prepared and delivered; but rather goes to the form and substance of the contract therefor, which was entirely oral. Briefly, plaintiff's position is that defendant had agreed to pay on a per diem basis, as alleged in its petition; while defendant contends, to the contrary, that the contract had been entered into solely on a contingent basis, whereby plaintiff would receive its compensation out of whatever refund in taxes it might be successful in obtaining from the government. Pertinent matters of evidence will be hereinafter considered in fuller detail, in connection with the several points arising for decision.

From the fact that Mr. Budke, president of defendant company, with whom Mr. Klaus of plaintiff company had discussed the terms and conditions of the proposed audit, was dead at the time of the trial, defendant first suggests that there was no competent evidence to show that the contract sued on had ever been made with it. But scant consideration has been given by learned counsel to this point in argument; and it will suffice to say that there was substantial evidence on the part of plaintiff that, conceding that the first negotiations had been entered into primarily with Mr. Budke, the conversations of the parties as to all material portions of the agreement, leading to the final consummation thereof, had also been held with, and in the presence and hearing of, Mr. Pendergast, then an officer and now the president of defendant, so that the point here made by defendant must be disallowed.

Defendant has the further complaint that plaintiff's Exhibits A to E inclusive were erroneously admitted in evidence. So far as concerns Exhibits C to E, it appears from the abstract of the record that the same were admitted without objection on the part of defendant; and, consequently, not having been made a matter of exception below, defendant is precluded from urging the point on appeal. Hafner Mfg. Co. v. City of St. Louis, 262 Mo. 621, 172 S. W. 28; Hayes v. Sheffield Ice Co., 282 Mo. 446, 221 S. W. 705; Church Shoe Co. v. Turner, 218 Mo. App. 516, 279 S. W. 232; Weisbrod v. Mueller (Mo. App.) 285 S. W. 542.

Passing now to the question of the competency of Exhibits A and B, we find that the same were time sheets, showing hours spent by plaintiff's employés in the completion of the audit of defendant's books, made at the very time of the work, signed by the employés preparing the same, and returned to plaintiff's office in the usual course of business. In addition, the correctness of such memoranda was verified by the employés themselves, when called as witnesses at the trial, so that, when regard is had for all the attendant circumstances, there clearly was no error in the admission in evidence of such exhibits. Dameron v. Harris, 281 Mo. 247, 219 S. W. 954; Avery v. Tucker, 137 Mo. App. 428, 118 S. W. 672; Prebe v. Quincy, O. & K. C. R. Co. (Mo. App.) 260 S. W. 816; Afflick v. Streeter, 136 Mo. App. 712, 119 S. W. 28; Jungkind Photo Supply Co. v. Yates (Mo. App.) 257 S. W. 820.

The next assignment of error for discussion, and the one pressed most vigorously by learned counsel in their argument, has to do with the denial by the court of defendant's request to be permitted to amend its answer (a general denial), during the progress of the trial, and after more than half of plaintiff's evidence had been received, so as affirmatively to allege that plaintiff had no interest in the cause of action sued on, and was not the real party in interest, for the reason that, subsequent to the institution of the suit, there had been an assignment by plaintiff to another of the cause of action. This point is so closely interwoven with the later action of the court in refusing the admission in evidence of defendant's Exhibits 1, 2, and 3, that, in order to determine whether defendant's rights were prejudiced so as to require a reversal of the judgment, the two rulings must, of necessity, be considered together.

Exhibit No. 1 was a paper, under date of December 10, 1924, which purported to give to Accounting & Engineering Service Company of St. Louis the authority "to collect or otherwise handle any claims, balances, accounts, etc., due or to become due" to plaintiff from a number of parties, including the defendant herein. Exhibit No. 2 was a letter, dated October 1, 1925, from Accounting & Engineering Service Company to defendant, advising the latter of the authority which it claimed under the paper designated as defendant's Exhibit No. 1. Exhibit No. 3, which stands upon a wholly different footing, was a certificate from the Commissioner of Internal Revenue, correcting certain claims against defendant for taxes previously made.

The latter exhibit was so obviously irrelevant and incompetent as to require but brief discussion. This action is in nowise based on quantum meruit, but proceeds solely upon an express contract; so that whether or not the report submitted by plaintiff to defendant was correct in all particulars was immaterial to the merits of the action, and particularly to plaintiff's right to recover, since defendant concededly accepted the results of plaintiff's work, and stood upon a wholly different defense at the trial, as we have heretofore pointed out.

With the question of the competency of defendant's Exhibit No. 3 out of the case, we now pass to the propriety of the refusal to permit the amendment of the answer, and the introduction in evidence of Exhibits Nos. 1 and 2 in support of such new defense. In declining to allow the amendment, which was the first request with which the court was confronted, the court took the view that the request came in much belated fashion, and that, in any event, defendant's rights would not be jeopardized by the outcome of the suit, since it could pay the amount of the judgment into court, where the respective priorities of plaintiff and the assignee, if such existed, could thereafter be determined.

There can be no doubt that, while amendments to pleadings should be liberally allowed in the furtherance of justice, whether or not the peculiar circumstances of a given case are such that a particular amendment should be allowed rests largely within the sound discretion of the court. Consequently, in this instance, we feel that we would be fully justified in saying, without more, that there was no palpable abuse of the court's discretion in refusing the request for the amendment, coming, as it did, in the middle of the trial, and making a most substantial change in the defense; especially when it conclusively appears that defendant at least, if not its counsel, had been fully cognizant of the matters relied on long prior to the commencement of the trial. Clark v. St. Louis Transfer Ry. Co., 127 Mo. 255, 30 S. W. 121; Yerxa, Andrews & Thurston v. Randazzo Macaroni Mfg. Co., 315 Mo. 927, 288 S. W. 20; Irwin v. Chiles, 28 Mo. 576.

Subsequent to the denial of leave to amend the answer, defendant's Exhibits Nos. 1 and 2, the substance of which we have heretofore discussed, were brought up for consideration; and it then became apparent that, as a matter of fact, Exhibit No. 1 constituted no such assignment of plaintiff's cause of action as would vest the legal title thereto in the assignee, and preclude the plaintiff from the further prosecution of the suit upon it; but rather, that it amounted to but...