Thornton v. Mersereau
| Decision Date | 12 November 1912 |
| Citation | 151 S.W. 212,168 Mo.App. 1 |
| Parties | BEN B. THORNTON, Respondent, v. CHARLES V. MERSEREAU, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. G. A. Wurdeman Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Lee A Hall for appellant.
(1) One partner cannot sue another in an action at law until a settlement has been made between them of the partnership affairs, even on a special agreement to pay salary. Richardson v. Bank, 4 My. & Cr. 165; Gaskell v Spence, 83 Mo.App. 380. (2) The testimony of the witness Hempleman should not have been admitted, and on defendant's motions should have been stricken from the record. (3) (a) A single instruction offered by plaintiff covering his whole case must not ignore any material defense of defendant. Link v. Westerman, 80 Mo.App. 592; Quirk v. Elevator Co., 126 Mo. 279; Borden v. Folk Co., 97 Mo.App. 566; Meyers v. Realty Co., 96 Mo.App. 625; Maccaully v. Greenwood, 127 Mo. 138; Scanlon v. Gulich, 199 Mo. 449; Evans Gardner Cul. Co. v. Railroad, 64 Mo.App. 305. (b) Plaintiff suing in his second count on the theory of "quantum meruit," cannot recover on the theory of "an agreement" performed. Clements v. Yates, 69 Mo. 623; Cole v. Armour, 154 Mo. 333. (c) Instructions should be addressed to the specific count they are intended to cover. Bailey v. Gas Fixture Co., 54 Mo.App. 50. (d) Defendant's instruction No. 6 should have been given. Phelan v. Paving Co., 115 Mo.App. 423. (4) The verdict and judgment should have been for defendant. Richardson v. Bank, 4 My. & Cr. 165. (5) Plaintiff's undisputed conduct and actions and his evidence are so wholly inconsistent with his alleged contract for salary as to demonstrate that the verdict was the result of passion, prejudice and sympathy. Spohr v. Railroad, 87 Mo. 74; Walton v. Railroad, 49 Mo.App. 620; Garrett v. Greenwell, 92 Mo. 120.
Geo. B. Logan for respondent.
(1) Appellant's first point, that one partner cannot sue another in an action at law is correct in the abstract, but not applicable to this case, since there was no evidence in this case tending to prove such a partnership as the appellant contemplates. (a) An agreement between two persons whereby they are to share the profits of a venture does not of itself constitute a partnership in such venture. The necessary incidents of a partnership are a sharing of the profits, a sharing of the losses, a joint ownership of the partnership property, and a joint management of the partnership business. Campbell v. Dent, 54 Mo. 325; Bank v. Outhwaite, 50 Mo.App. 124; Deyerle v. Hunt, 50 Mo.App. 541. (b) Statements of plaintiff's witnesses, or even of the plaintiff himself, that he was a partner might tend to create a partnership to such an extent as to render him liable to third persons, but to create a partnership inter sese, the intention of the parties is the essential factor. Deyerle v. Hunt, supra. (2) Testimony of witness Hempleman was fully admissible to prove the contract between the plaintiff and defendant as he was present when it was concluded. Hempleman was not a party to the contract between plaintiff and defendant, for the contract between plaintiff and defendant was carried out by plaintiff for defendant entirely without Hempleman. (3) Plaintiff's instruction A was proper, and defendant was not entitled to have his theory of the case presented, for: (a) An instruction should not include issues not raised by the pleadings, nor supported by the evidence. State ex rel. Robertson v. Hope, 102 Mo. 410; Kingman Co. v. Cornell-Tebbetts, 150 Mo. 281; Wann v. Scullin, 210 Mo. 429. (b) Nor should an instruction be given when there is evidence to support it if this evidence is improperly admitted, even though without objection. 38 Cyc. 1625-60; Weaver v. Hendrick, 30 Mo. 502. (4) Plaintiff's point 3 is not well taken, for it is not the law in this State. (a) It is the established law in this State that when a contract has been fully performed and nothing remains to be done but to pay the stipulated price, the party performing may abandon the contract in his pleadings and sue in indebtitatus assumpsit for quantum meruit. Dempsey v. Lawson, 76 Mo.App. 522; Barnett v. Sweringen, 77 Mo.App. 64; Keith v. Moore, 146 Mo. 90. (b) In such cases the plaintiff does not reject or abandon the contract, but on his count on quantum meruit offers the contract as evidence to sustain his case. Williams v. Railroad, 112 Mo. 468; Yeats v. Ballentine, 56 Mo. 535. (c) A breach of an express contract by defendant will permit plaintiff to recover on a quantum meruit the value of the services rendered, the contract price limiting the recovery. Moore v. Gauss, 113 Mo. 98; Brierre v. Sugar Co., 102 Mo. 622. (5) Defendant's instruction No. 6 was properly refused, as there was no evidence properly before the jury on which this instruction could have been predicated. Defendant's whole case was that plaintiff and defendant were partners. This should have been specially pleaded and evidence thereon should not have been admitted. (a) Where a defense is affirmative, all the facts necessary to constitute a full defense should be fully set out, and this rule applies to cases in equity as well as in law. Reynolds v. Reynolds, 45 Mo.App. 622; Guinotte v. Ridge, 46 Mo.App. 254. (b) If the defendant rests his defense on any fact not necessary to support the plaintiff's case, he must set it out in ordinary precise language or he will be precluded from giving evidence of it at the trial. Musser v. Adler, 86 Mo. 445; Guinotte v. Ridge, supra.
--The petition in this case as originally framed consisted of four counts. The first and fourth were abandoned at the trial, and while there was a verdict for plaintiff on the third count, he remitted all of that verdict so that the only count necessary for consideration is the second. That states that plaintiff entered into the service of defendant, at the request of defendant, and served as superintendent of construction of certain construction work, the work being the construction of certain alleys in the city of St. Louis and the construction of certain abutments in St. Louis county of a railroad; that he was engaged in the work for thirty-three and onehalf weeks, with the exception of three weeks; that the reasonable value of the services was twenty-five dollars per week, making a total of $ 833.33 and that the only money he had been paid as compensation for his work amounted to $ 175.25. Judgment was demanded for the difference.
The answer was a general denial.
The jury returned a verdict in favor of plaintiff on the second count for $ 500, and on the third count for fifty dollars, but under a motion for new trial filed by defendant, plaintiff remitted $ 175 of the verdict as to the second count and all of the amount returned on the third count. Judgment followed, defendant filing motions for new trial and in arrest, saving exception to the overruling of these, has duly perfected his appeal to this court.
The evidence of plaintiff as to the second count tended to show that he had an agreement with defendant as to superintending the doing of the work mentioned in the petition and that he was to receive a certain sum per week, also another sum as board money, and to have a share in the profits of the contracts under which the work was to be done; that defendant had failed to keep the contract.
Appellant makes six assignments of error here. First, to the refusal of an instruction in the nature of a demurrer to the evidence under the second count, asked at the close of plaintiff's evidence and of the whole case. Second, to error in the admission of certain evidence offered by plaintiff, it being contended that it was improper, incompetent, irrelevant and immaterial; and third, error of the court in giving an instruction at the instance of plaintiff and in refusing an instruction asked by defendant. Fourth, that the verdict and judgment is for the wrong party. Fifth, that it is the result of passion, prejudice and sympathy, and finally for the error of the court in overruling defendant's motion for new trial and his motion in arrest.
Taking these up in their order, we cannot agree, even on the showing made by counsel for defendant, that the demurrer to the evidence under the second count of the petition should have been sustained. There was evidence given on the part of plaintiff in support of that count and while the testimony of the witnesses for plaintiff and defendant was very contradictory over this, its determination was for the jury and their finding is conclusive. Counsel under this assignment argues that plaintiff's testimony is not entitled to belief. That matter was distinctly submitted to the jury by the instruction given at the instance of appellant, that if the jury believed from the evidence that any witness had wilfully sworn falsely to any material fact, the jury was entitled to reject the testimony of that witness. The jury was further told by an instruction asked by appellant, that the burthen of proof was on plaintiff and that he must prove his case by the greater weight of the evidence, and if the jury found from the evidence that plaintiff had failed to prove his case as to any one or more counts of his petition by the greater weight of the testimony, their verdict should be for defendant as to such count or counts. So that we rule the first assignment of error against appellant.
The second assignment as to the admission of...
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