Tinsley v. Kemry

• Decision Date: 26 November 1902
• Citation: 170 Mo. 310,70 S.W. 691
• Parties: TINSLEY v. KEMRY et al.
• Court: Missouri Supreme Court

70 S.W. 691

170 Mo. 310

TINSLEY v. KEMRY et al.

Supreme Court of Missouri, Division No. 1.

November 26, 1902.

JURY TRIAL — REFERENCE —ISSUES NOT REFERRED —APPEAL—BILLS OF ECEPTION —WHEN FILED.

1. Where a transcript did not disclose the filing of a bill of exceptions during the term in which an order of reference complained of was made, and the final bill of exceptions was filed nearly a year after such order, a recital in the final bill that exceptions were made to such ruling was not sufficient to raise the question for review in the supreme court.

2. Notwithstanding Const. art. 2, § 28, providing that "the right of trial by jury as heretofore enjoyed shall remain inviolate," the court may, in a proper case under the statute relating thereto, refer a case either generally or specially; such references being allowed prior to the adoption of the constitution.

3. Under Const. art. 2, § 28, providing that "the right of trial by jury as heretofore enjoyed shall remain inviolate," where an action at law is only referred in part, to state an account, either party is entitled to trial by jury as to all the issues joined except such as were referred to and reported upon by the referee.

Appeal from Louisiana court of common pleas; D. H. Ely, Judge.

Action by W. G. Tinsley against John W. Kemry and others. From a judgment in favor of plaintiff, defendants appealed to the court of appeals, which transferred the case. Reversed.

J. W. Matson, for appellants. Ball & Sparrow, for respondent.

MARSHALL, J.

This is a suit upon a contractor's bond, in which the plaintiff seeks to recover a judgment for $343.71 against the contractor and the sureties on the bond, and the contractor counterclaims for $366.70 extras. The plaintiff had judgment in the circuit court for $359.12, and the defendants appealed to the St. Louis court of appeals. That court transferred the case to this court on the ground that appellate jurisdiction is vested in this court, because the trial court had denied the defendants a trial by jury, as guarantied by section 28, art. 2, Const. Mo. 1875. Tinsley v. Kemery, 83 Mo. App. 94. That ruling was based upon the rule laid down in Ice Co. v. Tamm, 138 Mo. 385, 39 S. W. 791. The petition is bottomed upon an account stated between the plaintiff and the contractor, growing out of a contract made by Kemry to build a house for the plaintiff, under which the plaintiff had paid $343.71 in excess of the contract price. An itemized statement was filed with the amended petition, setting out the contract price and the extras, and also all the payments made by the plaintiff, and showing the balance claimed. The contractor and sureties answered separately. The answer of the contractor is a general denial, special defenses, and a counterclaim for $366.70, with a bill of items for extras amounting to that sum. The first special defense is that the bond sued on was not executed until long after the work had been begun, and that the bond was without consideration. The second special defense is substantially the same as the first. The third special defense is that the payments made by the plaintiff were not made to the defendant in person, nor were they made at the time agreed therefor by the contract. (The fact was that the payments were prematurely made, but no damage is shown to have resulted to the defendant for this rather extraordinary proceeding.) The fourth special defense is that there were changes made in the plans and specifications and in the contract secured by the bond. Then follows the counterclaim, and the bill of items upon which it is based. The answer of the sureties is a general denial, with seven special defenses, to wit: First, that there is no consideration for the bond, and that it was executed long after the contract it secures was made and the work begun thereunder; second, that the contract was changed, and the work done differently from that contemplated by the plans and specifications without the consent of the sureties; third, that the plaintiff paid the contractor before the part payments were due by the terms of the contract; fourth, that the plaintiff did not insure the building as required by the contract; fifth, that by the terms of the contract the owner reserved a right to make alterations, additions, or omissions in the work, which the contractor was obliged to carry out without its affecting the contract, but that the value of such alterations should be agreed upon in writing between the owner and the contractor before they should be made, and that alterations were made, but no such written agreement as to the value thereof was so made; sixth, that it was agreed between the sureties and the plaintiff that one Baird should not be employed as architect or superintendent, or have anything to do with the work or contract, and that the plaintiff violated the agreement, and permitted Baird to act as superintendent. The reply sets up that the contract provided that changes might be made in the work contemplated by the contract, and extra work done, as the parties might agree upon in writing, and that no changes were made or extra work done except such as the parties agreed upon in writing. The record shows that these answers were filed at the November term, 1897, of the Louisiana court of common pleas, and further shows: "Whereupon the court of its own motion appoints W. H. Morrow referee, over the objection of defendants J. D. Bowman and Mary E. Rupert" (the surety and administratrix of the deceased surety). The record further shows that at the adjourned November term, 1897, to wit, on December 13, 1897, the defendants moved the court to set aside the order of reference, assigning as grounds for the motion: "(1) There is no such account between said parties as to justify the appointment of a referee; (2) these defendants objected to said appointment at the time it was made, and the referee has not qualified as such as this time." On December 14, 1897, the court sustained the said motion, and modified the order of reference "so that the referee shall only be required to find and state an account between plaintiff, W. G. Tinsley, and defendant J. W. Kemry, and, if any of the items in account between plaintiff and J. W. Kemry were not contracted under the original contract, the referee must show the facts. Whereupon defendants J. D. Bowman and Mary E. Rupert, by John W. Matson,...