APPEAL
from Jackson Circuit Court, HON. F. M. BLACK, Judge.
Reversed and remanded.
Statement
of case by the court.
This is
an action to recover for services alleged to have been
rendered defendant by plaintiff. The petition contained two
counts. The first alleged that in January, 1882, the
plaintiff made a voluntary assignment for the benefit of
creditors to the defendant, as assignee, of a lot of goods in
Kansas City. That defendant took possession of the goods as
such assignee, and employed the plaintiff to assist him in
disposing of the same, and agreed to pay him for such
services at the rate of two hundred dollars per month. That
plaintiff performed such services for two months, amounting
to four hundred dollars, for which he asks judgment. The
second count was for a quantum meruit for said
services, asking judgment for the same sum.
The
answer was a general denial.
The
plaintiff's evidence tended to show that the defendant
employed him on the terms alleged in his petition, and that
he performed the services. He also made proof of the value of
the services.
The
defendant's evidence tended to show the following state
of facts: The plaintiff stated to defendant that he proposed
making an adjustment with his creditors, by offering a
certain per cent. He proposed to have the claims assigned to
himself, and then have the assignee sell the property through
an order of the court, and have it bid in for his benefit
and thereby get his property back into his own hands. In
order to keep the property and the business in good condition
for him he proposed to stay with plaintiff to aid in the
sales, " and keep the stock in shape." Defendant
agreed to keep him, with the understanding that if plaintiff
effected the settlement, as expected, so as to get the
property back, defendant was not to pay him anything. If no
compromise was effected, so that the whole property would
have to be disposed of in the usual way under the assignment
the plaintiff was to receive from defendant, as assignee, the
sum of two hundred dollars per month for his services
provided such amount should be approved by the court. That
plaintiff stayed there only a part of the time claimed for
being absent in New York trying to effect a settlement with
his creditors. The plaintiff did succeed in making such
settlements, and buying up the claims, and had defendant to
obtain an order of court for the sale of the goods, under
which they were sold, and were bought in by one Saltsman, at
plaintiff's instance, and for his benefit.
Saltsman
furnished no money, but acting for plaintiff turned the goods
over to him. Sometime during plaintiff's stay in the
store defendant paid him, at different times, the sum of one
hundred dollars. When defendant went to make his settlement
with the court as assignee, he applied to plaintiff and
obtained from him a receipt for this money, on account of
services.
There
is some uncertainty, from the evidence, as to whether this
money was loaned by defendant to plaintiff, or was advanced
to him on account of his services. The plaintiff denied all
knowledge of the transaction. The defendant testified that on
taking plaintiff's receipt, after the goods were all
disposed of, the plaintiff made no claim whatever for any
services, although he knew defendant was making his final
settlement with the court as assignee.
The
plaintiff in rebuttal testified that the goods were bought in
at the sale by Saltsman for the benefit of plaintiff's
wife, and were turned over to her and not to plaintiff.
Plaintiff claimed that he had obtained from his wife money
with which to effect said settlements with his creditors and
paid her off in this transfer.
Plaintiff
also testified that he did not succeed in making an
adjustment with two of his creditors, who attacked the
purchase of the goods made through Saltsman for his wife, and
were defeated, so that the goods remained with her.
The
court of its own motion gave the following declarations of
law:
" 1. In order for the plaintiff to recover in this case,
he is bound to show that there was a contract, either
expressed or implied, on the part of the defendant to pay him
for the services rendered."
" 2. Though the court should find from the evidence that
there was an implied contract between plaintiff and defendant
that defendant should pay plaintiff for his services, still,
if the court further believes from the evidence that the
defendant gave to the plaintiff one hundred dollars, and that
at the end of said service when the receipt for said one
hundred dollars, read in evidence, was given, it was agreed
that the said one hundred dollars should be in settlement for
said services, then the plaintiff is not entitled to recover
anything more."
" 3. If the court find from the evidence that the
receipt for one hundred dollars, read in evidence, was given
by the plaintiff to defendant as a voucher for money
previously given by defendant to plaintiff, and that said
money was not regarded at the time it was given as for
services, and said receipt was not given till after said
services had ended, then the giving or receiving said
receipt, or the giving said money, is not to be regarded as
evidence to raise a presumption that there was a contract on
the part of the defendant, expressed or implied, to pay for
the services."
" 4. The court, sitting as a jury, in considering the
testimony of the plaintiff and defendant, as to whether there
was a contract on the part of the defendant to pay plaintiff
for the services rendered, may take into consideration the
motive the defendant would have had in withholding from the
plaintiff anything due to him, and if the defendant, simply
acting as assignee, had no motive or personal interest in
withholding from plaintiff anything due by him as such
assignee, then this may be taken as a circumstance
corroborating defendant's testimony that he was not to
pay plaintiff for said services, and as to what his contract
was with plaintiff."
The
defendant asked, and the court refused to give, the following
declarations of law:
" 2. If the court, sitting as a jury, shall find that at
the time the plaintiff entered the service of the defendant
the defendant was in possession of the stock of goods
assigned to him by the plaintiff, and the plaintiff stated to
the defendant that he wished to make a settlement with his
creditors, so that he should again get said stock of goods
under his control, and that he wished to remain in the store
so as to keep the stock of goods in as good shape as possible
for himself, in case he should effect such a settlement, and
that thereupon the plaintiff and defendant made an agreement
whereby the plaintiff was to remain in charge of said goods
for the defendant, and in case he made such settlement with
his creditors, then the defendant was to pay him nothing; and
if the court shall further find that the plaintiff did effect
such settlement with his creditors, so that on March 4, 1882,
said stock of goods was transferred to one Saltsman, for the
benefit of the plaintiff, and that said stock of goods
thereby came under the control of the plaintiff and that this
was regarded by the parties at the time as such a settlement
as was contemplated by them in the agreement aforesaid, then
the plaintiff is not entitled to recover, and the court
further declares that, though this transfer of the stock of
goods was made to the said Saltsman, and not to plaintiff
directly, still if it was made to Saltsman for the benefit of
plaintiff, then for the purposes of this suit it was a
transfer to plaintiff; and if, after the transfer to
Saltsman, the stock was transferred by him to plaintiff's
wife, at the direction of the plaintiff, to satisfy debts
owing by plaintiff to his wife, then this is evidence that
plaintiff regarded the transfer to Saltsman as a transfer for
his own benefit, and for the purposes of this suit, it was a
transfer for the benefit of the plaintiff."
" 3. To entitle the plaintiff to recover upon an implied
contract, the action of the plaintiff and defendant must have
been such that the law will imply that it was the intention
of the defendant to pay plaintiff such a sum for his services
as they were reasonably worth; and if the court believe from
the evidence that the plaintiff agreed to render the services
upon the terms testified to by defendant, then, though said
contract should be void, still the fact that a contract of
that sort was made by the parties, shows that neither
plaintiff nor defendant had a contract of a different kind in
his mind, and this negatives the idea that there was an
implied contract."
" 4. If the court believe from the evidence that the
plaintiff and defendant entered into such a contract, as that
testified to by the defendant, then the plaintiff cannot
recover in this suit."
The
court, sitting as a jury, found the issues for the defendant
on the first count, and found for plaintiff on the second
count, in the sum of three hundred dollars. Defendant has
brought the case here on appeal.
WOODSON
& SLAUGHTER, for the appellants.
I. The...
