Thompson v. Emerson

• Citation: 118 Mo. App. 232,94 S.W. 818
• Parties: THOMPSON v. EMERSON.
• Decision Date: 24 April 1906
• Court: Court of Appeal of Missouri (US)

94 S.W. 818

118 Mo. App. 232

THOMPSON v. EMERSON.

St. Louis Court of Appeals. Missouri.

April 24, 1906.

1. TRIAL—INSTRUCTIONS—BURDEN OF PROOF.

Where some of the items of an account as claimed by plaintiff were admitted by defendant, it was error to instruct the jury that the burden was on plaintiff to prove each and every item of the account.

2. ATTORNEY AND CLIENT—COMPENSATION— PLEADING AND PROOF—VARIANCE.

Where, in an action by an attorney for services, defendant's answer claimed a settlement showing a balance in his favor, it was error to admit evidence that plaintiff, without defendant's consent, had satisfied a judgment in favor of defendant, and that plaintiff had

wrongfully retained certain moneys placed in his hands for transmission.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by Luke M. Emerson against J. E. Thompson. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Tapley & Fitzgerrel and Ball & Sparrow, for appellant. Geo. W. Emerson and Elijah Robinson, for respondent.

BLAND, P. J.

The action is in assumpsit to recover a balance of $326.10 for legal services rendered and money expended by the plaintiff, at the special instance and request of the defendant, an itemized account of which is set out in the petition. The answer is as follows (omitting caption) : "Now comes defendant herein and for answer to plaintiff's petition filed in this cause, and admits he paid plaintiff the sum of $215.50, and denies each and every other allegation in said petition contained. Defendant, further answering, says that on the ______ day of June, 1903, he had a settlement with defendant in which all items for services and moneys expended were included, and upon said settlement plaintiff was indebted to defendant in the sum of $12.50, for which defendant asks judgment, and for his costs." A reply was filed denying the new matter in the answer. The trial resulted in a verdict and judgment for plaintiff for $56.83. Plaintiff filed a timely motion for new trial which the court overruled, and plaintiff appealed.

Plaintiff gave evidence tending to prove each and every item of the account, and that the charges for his legal services were reasonable. Defendant, in his evidence, admitted many of the items of the account and testified, that in August, 1901, he had a settlement with the plaintiff of all matters of account between them, and in the settlement it was ascertained that plaintiff owed him $12.50, and...