Smith v. Baer

Citation66 S.W. 166,166 Mo. 392
CourtUnited States State Supreme Court of Missouri
Decision Date17 December 1901
PartiesSMITH v. BAER.<SMALL><SUP>1</SUP></SMALL>

1. Where an order of reference was entered on November 9, 1895, during the October term, and no bill of exceptions was filed during that term, nor until the April term, 1898, the recital of facts in such bill was unavailing to save exceptions to the order of reference. The appellant should have failed a bill at the October term, and embodied that bill in his final bill of exceptions.

2. The motion for a trial by jury on certain counts of the petition, being no part of the record, was not made a part by a bill of exceptions filed at the next term after the motion was overruled, and such action will not be considered on appeal.

3. A motion for trial by jury on certain counts of the petition and certain counterclaims came too late after the case had been referred.

4. Under Rev. St. 1899, giving the court power to try separately some of the counts of a petition, the matter is one of discretion, the exercise of which will not be reviewed except for abuse.

5. The conclusion of a reference is not to be considered in reviewing the court's action in deciding on the necessity for reference.

6. Where an appellant desires the supreme court to decide whether there was any substantial evidence to support a finding by a referee, his abstract of the evidence must be sufficient to enable the court to decide the contention, and he cannot compel the appellee to present the evidence.

7. The first count of a petition was on a note for $1,200. The second was for the recovery of one-half the losses incurred by the parties in joint mining speculations. Defendant pleaded as a counterclaim that he executed two notes for $1,000 each, the proceeds of which went into the mining speculations; that he afterwards executed a note for $5,000, to be used to pay off the two $1,000 notes; that plaintiff sold the $5,000 note, but applied only $500 to the two notes, and that defendant was compelled to pay the balance on them. Held, that the supreme court would not consider the evidence on a contention that there was no support for a finding by the referee that there were no directions by the defendant to the plaintiff to apply any of the proceeds of the $5,000 to payment of the "$1,200 note," or on an open account, as there was no such issue raised by the pleadings.

8. The practice of reviewing the findings on conflicting evidence in equity cases will not be extended to cases tried by referees, though the reference was compulsory.

9. Under the constitution the supreme court has the right to review the facts as well as the law in any case, however it may have been tried.

Robinson, J., dissenting in part.

Appeal from circuit court, Jackson county; Edw. P. Gates, Judge.

Action by W. W. Smith against George J. Baer. From a judgment for plaintiff, defendant appeals. Affirmed.

For a clearer understanding of this case, the issues and findings of the referee and the material proceedings in the case will be stated in their relation to each other.

The first count of the petition is based on a note for $1,200, executed by the defendant to the plaintiff on September 28, 1889, with 10 per cent. interest. The answer admits the execution of the note and pleads payment. The referee found that it was not paid, and recommended a judgment for the plaintiff thereon. The second count of the petition seeks to recover $5,710, being one-half of the losses incurred and paid by the plaintiff in a mining speculation in Arizona, in which the parties, with one Boaz, were interested. The answer admits the mining speculation, but denies that the defendant owes the plaintiff anything on account thereof, and, on the contrary, says the plaintiff expended money for the incorporated company that owned the mines, and not for the defendant personally; and avers that the defendant put in $2,772.34 for the company, and charges that the plaintiff sold $7,500 worth of ore belonging to the company, and never accounted for it; and therefore says, if he is liable to the plaintiff for any part of the losses paid by him, he (defendant) is entitled to credit for one-half of the $7,500 and for the $2,772.24. The plaintiff claimed that he and the defendant verbally agreed to share the losses equally, because Boaz was unable to pay anything, and that this agreement was reduced to writing and signed by the parties on November 8, 1890. The defendant claimed that he only agreed to be liable for one-third of the losses (the plaintiff and Boaz to stand the other two-thirds) prior to the execution of the written agreement of November 8, 1890, and that agreement was intended to operate only prospectively. The referee found in favor of the defendant on this count, and both parties acquiesced in the finding; so that it is not before this court on its merits, but only as it bears upon the question hereinafter to be discussed as to the propriety of the reference of the case. The parties were formerly partners in other business in Kansas City, and upon its termination the defendant owed the plaintiff $875.58. The third count of the petition seeks to recover that sum. The answer admits that the defendant owed plaintiff that sum when the partnership was dissolved, but denies that he owes him anything at this time, "as the plaintiff is indebted to him in an amount greatly in excess of the amount of said balance so found to be due." Whether the debt had been wiped out depended upon the application of the proceeds of a note for $5,000 made by defendant to the plaintiff, which will be hereinafter referred to. The referee found that the balance was still due the plaintiff, and recommended a judgment for that amount.

The defendant pleaded three counterclaims, as follows:

First. That he executed two notes for $1,000 each to the National Bank of Commerce, the proceeds of which went into the mining speculation; that he afterwards executed to the plaintiff a note for $5,000, secured by deed of trust, which was to be used to pay off said two notes; that the plaintiff sold the note for $5,000, but applied only $500 on one of the $1,000 notes, and that the defendant was obliged subsequently to pay the balance of said notes, amounting to $1,611.90, and he asked judgment against the plaintiff for that amount. Upon the trial it appeared, and the referee found the facts to be, that one of the $1,000 notes was the joint note of the defendant, the plaintiff, and Boaz, while the other $1,000 note was the defendant's own note, which the plaintiff and Boaz had indorsed as an accommodation for the defendant, and that the defendant had received the proceeds thereof; and, further, that when the $5,000 note was executed the defendant directed the plaintiff to pay the joint note out of the proceeds of the $5,000, but that the plaintiff had only paid $500 on the $1,000 joint note, and therefore the referee gave the defendant judgment on this counterclaim for $611.90. The defendant further claimed on the trial that when he executed the $5,000 note he directed the plaintiff, after paying the two $1,000 notes, to apply the balance to the payment of the $1,200 note sued on in the first count of the petition, and of the $875.88 sued for in the third count of the petition, and to send him (the defendant) the remainder of $500 to $1,000; and that, instead of doing so, the plaintiff only paid $500 on the joint note for $1,000, and that he kept the difference. The fact appeared, however, that the plaintiff expended the balance in the mining venture, and gave the defendant credit therefor in his statement attached to the second count of the petition. The referee found that there were no specific directions given by the defendant to the plaintiff to apply any part of the proceeds of the $5,000 note to any note or indebtedness except to the $1,000 joint note, but that the balance of the $5,000 note was to be used in the payment of expenses incurred and to be incurred in the mining business; that, while the defendant expected the plaintiff to remit him some part of the said proceeds, there was no definite agreement of any particular amount; and that the plaintiff properly applied said proceeds, except as to the $611.90 balance due on the $1,000 note, for which he recommended that the defendant have judgment.

Second. The defendant claimed in his second counterclaim that he contracted to sell the plaintiff 5,500 shares of his stock in the mining company for $1.50 a share, aggregating $8,250; that 2,500 of said shares, of the value of $3,750, were delivered to the defendant, and 3,000 shares, of the value of $4,500, were attached to the two notes of $1,000 each, above referred to, which the plaintiff was to pay and take up the collateral; that afterwards the defendant agreed to sell said shares to one Bristow, for $1.50 a share (here the sequence ends); and judgment is asked against the plaintiff for $8,250. There was no substantial evidence to support this claim, and the referee found that no such contract was ever made by the defendant with the plaintiff.

Third. The third counterclaim alleges that Boaz made his note for $6,885.42, to the order of the plaintiff and the defendant, and secured it by 5,000 shares of the mining company, of the value of $7,500, belonging to Boaz, and by Boaz's interest in 2,500 shares of said company that stood in the name of A. J. Rupert, alleged to be worth $1,000, and by Boaz's interest in 6,000 shares of said company that stood in the name of plaintiff as trustee, alleged to be worth $3,000, and by 50 shares of the Western Land & Live Stock Company, alleged to be worth $5,000; and that plaintiff indorsed said note for $6,885.42 to himself, and appropriated all of the collaterals to his own use, and recovered a judgment in his own name on the note against Boaz for $9,926.47; and the...

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