Rice v. Robertson

• Decision Date: 07 March 1932
• Docket Number: No. 4994.,4994.
• Citation: Rice v. Robertson, 48 S.W.2d 172 (Mo. App. 1932)
• Parties: RICE et al. v. ROBERTSON et al.
• Court: Missouri Court of Appeals

48 S.W.2d 172

RICE et al. v.ROBERTSON et al.

No. 4994.

Springfield Court of Appeals. Missouri.

March 7, 1932.

Appeal from Circuit Court, New Madrid County; John E. Duncan, Judge.

"Not to be officially published."

Action originally begun by W. S. Rice, J. J. Garrett, and another, against W. P. Robertson and others, a partnership, doing business under the style and firm name of Robertson, Carmean & Bennett, in which, upon the death of W. S. Rice, the cause was revived in the name of his administratrix, Maggie Rice, and in which, upon the bankruptcy of J. J. Garrett, the cause was revived in the name of W. H. Dorsey, trustee in bankruptcy, and in which the Citizens' Bank of Senath and another were made partiesplaintiff, and in which defendants filed a counterclaim.From the judgment, plaintiffs appeal.

Affirmed.

Hal McHaney, of Kennett, and Ward & Reeves, of Caruthersville, for appellants.

C. G. Shepard, of Caruthersville, and Gallivan & Finch, of New Madrid, for respondents.

SMITH, J.

This action was originally begun on the 16th day of October, 1925, by W. S. Rice, J. J. Garrett, and A. W. Garrett, filing their petition in the circuit court of Pemiscot county, Mo., against the defendants.These three parties constituted the copartnership of Rice & Garrett, and the action was prosecuted against the defendantsW. P. Robertson, J. W. Carmean, and B. O. Bennett, a partnership under the name of Robertson, Carmean & Bennett.After part of the testimony had been taken, W. S. Rice died and the cause was revived in the name of his administratrix, Maggie Rice.J. J. Garrett went into bankruptcy, and the cause was revived in the name of the trustee in bankruptcy.After the testimony was taken, because it was apparent that the Citizens' Bank of Senath and the Bank of Kennett might have an interest in the cause, at their request the two banks were made partiesplaintiff, and the cause was thereupon prosecuted in the names of the plaintiff as they appear in the caption of this opinion.

A change of venue was taken by the plaintiffs from Pemiscot county to New Madrid county, where, on the 21st day of January, 1928, defendants filed a motion for the appointment of a referee.The court appointed a referee, over the objections and exceptions of the plaintiffs, and a term bill of exceptions was filed by the plaintiffs.

Honorable J. M. Haw, of Charleston was selected as referee and after a long time in the taking of a great mass of testimony the referee, on June 26, 1930, filed his report of findings in said cause, with the clerk of the circuit court of New Madrid county.The plaintiffs and the defendants both filed exceptions to the report of the referee.Thereafter on January 24, 1931, the circuit court overruled the exceptions of the plaintiffs, and sustained the exceptions of the defendants, and, over the objections and exceptions of the plaintiffs, a new finding and judgment was rendered by the court, which judgment is as follows:

"Come now the plaintiffs and defendants by their respective attorneys and this matter having heretofore been submitted to the court on the exceptions filed by both plaintiffs and defendants which matter has heretofore been fully argued and briefed by attorneys for both plaintiffs and defendants, and the court being fully advised in the premises, overrules all the exceptions filed on the part of the plaintiffs, and overrules all the exceptions filed by the defendants to the referee's finding on count four of plaintiffs' petition, wherein plaintiffs are allowed the sum of $1,253.55, as retained per cent., ten per cent. on all work done by plaintiffs for defendants and wherein plaintiffs are allowed the sum of $1,008.00 as yardage discovered by the State Highway Department and not credited on the books of defendants to plaintiffs' account.

"The court finds that the books of the defendants show that plaintiffs have received credit for the full amount of work done, including the item of $1253.55, retained per cent., and $1,008.00 mentioned in the referee's finding as discovered yardage or extra yardage.

"The court further finds that the referee's report allowing defendants a credit in the sum of $125.00 as being the amount for which defendants agreed to complete the unfinished work to have been done by plaintiffs should be set aside, as when the exceptions to the referee's finding in the sum of $1253.55 as retained per cent., and to the sum of $1,008.00 as extra yardage as sustained, then said sum of $125.00 has no place in the judgment or finding in this case.

"The complete account offered in evidence between plaintiffs and defendants show that defendants had paid to plaintiffs during the progress of the work the sum of $536.99 more than the work done by plaintiff amounted to.The referee found no objections to the book account offered in evidence upon the part of the defendants showing the payments made by defendants to plaintiffs, and after careful consideration of the evidence introduced the court finds said charges to be correct and to be money expended and paid out by defendants to and for the plaintiffs in doing the work contracted to be done by them.

"The referee, however failed to find that plaintiffs had been credited on the books of the defendants with the item of $1,253.55 as hold-back or retained per cent., and with the item of $1,008.00 as extra yardage discovered, while all the evidence shows said items were credited and the attorneys for plaintiffs in arguing the exceptions admitted to the court that said items had been credited, but it was the contention of the attorneys for plaintiffs that other items should have been credited, which were not.

"The defendants in their answer and counterclaim asked to be allowed the balance due on the book account between plaintiffs and defendants in the sum of $536.99, the court allows said amount and overrules all the other exceptions and claims of defendants filed in said cause, except as to the items of retained per cent. and extra yardage as heretofore mentioned.

"It is therefore ordered, adjudged and decreed by the court that the plaintiffs take nothing by their cause of action herein and that defendants have and recover of and from the plaintiffs on their counter-claim said sum of $536.99, and their cost in this behalf expended and that executions issue for the amount of said judgment and cost."

Under the first assignment of error complaint is made that the court erred in referring this case to a referee over plaintiffs' objection.

It is agreed that no case can be referred without consent unless it is expressly authorized by section 976, R. S. Mo. 1929.Klingenberg v. Davis, 219 Mo. App. 1, 268 S. W. 99.

It is also true that the statute authorizing a reference must be strictly construed.Browning v. North Mo. Cent. R. Co., 284 Mo. 439, 224 S. W. 748.

Whether or not a case may be referred over the objections of one of the parties must be determined by the pleadings and the issues raised by the parties themselves.Kenneth Co. v. Bank, 96 Mo. App. 125, 70 S. W. 173;Bank of Oak Ridge v. Duncan(Mo. Sup.)40 S.W.(2d) 656.

Since the question of reference must be determined largely from the pleadings, we set out the amended petition and the answer.

The petition, caption and signatures omitted, is as follows:

"Come now the plaintiffs and for their third amended petition leave of court first had and obtained, state that they were at the times hereinafter complained of a partnership composed of W. S. Rice, J. J. Garrett, and A. W. Garrett, engaged in road grading and construction work in Dunklin County, Missouri, and doing business under the style and firm name of Rice & Garrett Brothers.Plaintiffs further state that subsequent to the institution of this suit, and to the filing of the first amended petition herein, the plaintiffJ. J. Garrett was adjudicated a bankrupt and that by permission, authority and order of the Referee in Bankruptcy, having authority and jurisdiction of said bankrupt estate, this suit, as far as J. J. Garrett is concerned, is now being prosecuted by W. H. Dorsey, Trustee of the estate of said J. J. Garrett, Bankrupt; and that the defendants were at said times a partnership composed of W. P. Robertson, J. W. Carmean and B. O. Bennett, engaged in road construction work in Dunklin County, Missouri, and doing business under the style and firm name of Robertson, Carmean and Bennett; that the plaintiffs, Citizens' Bank of Senath, and the Bank of Kennett are each banking corporations duly organized and existing under the laws of the state of Missouri; that the other named plaintiffs herein, Rice & Garrett Brothers, heretofore, made to each of said banks a separate written order or assignment of the amount due them by the defendants as hereinafter set out; that said orders and assignments were made by Rice & Garrett Brothers, and that said banks have no other interest in this litigation than to collect from the amount recovered herein, the amount due each of them separately; and these plaintiffs, Rice & Garrett Brothers, for their cause of action against the defendant state; That on or about the 1st day of December 1922, they entered into a written contract and agreement with the defendant to do certain road grading work on Road ProjectNo. 199, State HighwayNo. 25, Dunklin County, Missouri; said contract and agreement being in words and figures as follows, to-wit:

"Contract for Road Grading.

"This contract and agreement made and entered into this 27th day of November, 1922, by and between W. P. Robertson, J. W. Carmean and B. O. Bennett, parties of the first part, and W. S. Rice and J. J. Garrett and A. W. Garrett, parties of the second part.

"Witnesseth, Whereas, the parties of the first part have entered into a contract with State Highway Department of the State of Missouri to do certain road construction work in Dunklin County, known and designated as project No. 199, and,

"Whereas, the said...