the Moline Plow Co. v. Hartman
Decision Date | 31 October 1884 |
Citation | 84 Mo. 610 |
Parties | THE MOLINE PLOW COMPANY v. HARTMAN et al., Appellants. |
Court | Missouri Supreme Court |
Appeal from Johnson Circuit Court.--HON. N. M. GIVAN, Judge.
REVERSED.
O. L. Houts for appellants.
(1) Issues of fact in an action at law must be tried by a jury, unless a jury be waived, and there can be no waiver only by a failure to appear by written consent, in person, or by attorney, filed with the clerk or by oral consent in court entered on the minutes. R. S. of Mo., 1879, p. 616, secs. 3600 and 3602. And that the answer, in an action at law, sets up defence either legal or equitable, does not deprive the parties of the right of a trial by jury. Wolff v. Schaeffer, 4 Mo. App. 367; same case, 74 Mo. p. 154; Carter v. Prior, 78 Mo. p. 222. (2) Issues not submitted by the pleadings cannot be passed upon or determined. Wade v. Hardy, 75 Mo. 394; Capital Bank v. Armstrong, 62 Mo. 59; Currier v. Lowe, 32 Mo. 203; Price v. St. Louis, Kansas City & Northern Railway Co., 72 Mo. 414; Ely v. same, 77 Mo. 34. (3) This is not an action on quantum meruit, but on a contract, an entirety. The court found that plaintiff had not performed it, and the judgment on the record should have been for defendants. Yeats et al. v. Balentine, 56 Mo. 530; Eyerman v. Mt. Sinai Cemetery Association, 61 Mo. 489; Haysler et al. v. Owen, 61 Mo. 270, 275; Bersch v. Sander, 57 Mo. 104.
John J. Cockrell, J. P. Orr and Tomlinson & Ross for respondent.
(1) The issue raised by the plea of off-set was the only issue of fact at law and was fairly submitted to and tried by the jury. (2) That part of the answer which was equitable was really a bill in equity to reform a contract and must be treated as such. Upon this bill in equity the court below had a right to refuse to submit issues to a jury, or, having submitted them, had a right to disregard their verdict. Defendants asked the submission of the issues which were tried by a jury. It was their own fault if they did not submit all they wanted tried by jury. The court below, as it could have refused at first, had the right to refuse again to submit issues, and it would have been erroneous to submit an equitable defence to a jury. Defendants had their legal defence tried by a jury. They also had their equitable defence tried as far as they wished by a jury, in the only way it could be tried.
Plaintiff sued on this contract:
“WARRENSBURG, December 2, 1879.
It is hereby agreed between Hartman and Markward of this place and Moline Plow Company, of Kansas City, both of the state of Missouri, that the parties of the first part agree to pay the second named party the sum of two thousand and sixty-eight dollars and fifty-eight cents, upon the completion of the following named changes in their mill in the above named place, viz: Change the separator to a number one (1) receiving separator and furnish one (1) bevel core gear, ten (10) foot shaft; two (2) babbit boxes, two (2) collars, one (1) pulley and frame of sufficient size and capacity to drive smutter, and take the wabble out of the fly wheel, finding all freights and work to make these changes. These signatures are annexed to the within agreement in the presence of witnesses.
H. E. GATES, Agent.”
It alleged a performance of the contract on its part and a refusal of performance on the part of defendants, admitted a payment of $1561.04, and prayed judgment for balance and for all other proper relief.
The answer admitted the execution of the contract, and says, that on said day defendants agreed to pay plaintiff the sum of two thousand and sixty-eight dollars and fifty-eight cents, when the plaintiff had done the work and made the changes mentioned in the written instrument sued on; and had furnished defendants a separator with interchangeable sieves and one new run of stones; had refunded to defendants the sum of twenty dollars, paid by them for running three elevators through said mill, when in fact only one was run through, and had paid defendants the sum of forty-two dollars and twenty-nine cents before expended by them for lumber and freight. Defendants further pleaded as a set-off a demand for $144.75, and prayed judgment for...
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Babcock v. Rieger
... ... Withers v. Railroad, 226 Mo. 396; Schuerman v ... Ins. Co., 165 Mo. 652; Moline Plow Co. v ... Hartman, 84 Mo. 610; Priest v. Oehler, 41 ... S.W.2d 786; Berryman v. Motor ... ...
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Babcock v. Rieger, 31021.
...into an equity case by the pleadings of the defendants. Withers v. Railroad, 226 Mo. 396; Schuerman v. Ins. Co., 165 Mo. 652; Moline Plow Co. v. Hartman, 84 Mo. 610; Priest v. Oehler, 41 S.W. (2d) 786; Berryman v. Motor Car Ins. Co., 199 Mo. App. 504; Bank of Neeleyville v. Lee, 193 Mo. App......
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