Weese v. Brown

• Decision Date: 22 December 1890
• Citation: 102 Mo. 299,14 S.W. 945
• Parties: WEESE v. BROWN.
• Court: Missouri Supreme Court

14 S.W. 945

102 Mo. 299

WEESE v. BROWN.

Supreme Court of Missouri.

December 22, 1890.

JUSTICES OF THE PEACE — PLEADING — DIRECTING VERDICT — APPEAL.

1. Before a justice of the peace, a statement of plaintiff's claim, as follows, is sufficient: "1884. H. B. to J. W., Dr. To amount due for digging well, $60."

2. In a suit to recover the agreed compensation for work done, there being no dispute as to the terms of the contract, the jury may be charged to find for the plaintiff if he did the work as agreed.

3. The compensation agreed on being "a certain cow and $15," and the jury having awarded the plaintiff $44.40, the judgment cannot be disturbed because there was no evidence of the value of the cow, the excess in the damages awarded not having been objected to in the motion for a new trial.

4. The objection, that there was no proof of a demand for the cow before suit, cannot be urged for the first time in an appellate court.

Appeal from circuit court, Polk county; BEN V. ALTON, Judge.

This cause was transferred from the Kansas City court of appeals under section 6 of the constitutional amendment of 1884, Judge PHILLIPS being of opinion that the decision of the majority therein was in conflict with authoritative rulings of the supreme court. The report of the case is to be found, 28 Mo. App. 521. The action was begun before a justice of the peace, and defendant concedes that the following was the account filed there on which the proceedings are based, viz.: "1884. Henry Brown to Joseph Weese, Dr. To amount due on contract for digging well, $60.00." After judgment for plaintiff before the magistrate, defendant appealed to the circuit court, where the cause was tried anew. Plaintiff's proof was "that some time in latter part of August, or early part of September, 1884, he made a contract with defendant to dig him a well 35 feet deep, unless he should secure in a less distance 15 or 16 buckets of water during the run of the night, for which defendant was to give him a certain cow and fifteen dollars in money. Plaintiff also proved that at two different times he and others measured it, and, at one time, found 33 buckets and the other 60 buckets; and also that defendant had stated that he might have the amount of water, but claimed it was surface water." This was all the evidence offered by plaintiff. Defendant introduced evidence as follows: "Two witnesses swore that on the 9th day of September, 1884, they drew out all the water, and on the 10th, about 12 hours afterwards, they measured the water and found about 6 buckets full; and four witnesses swore that on the 16th of same month they drew out all the water, and measured the water the next morning, about 12 hours afterwards, and found 12 buckets of water; also by a number of witnesses that between that time and the day of trial it was measured twice and found water to the amount of 2½ gallons per hour; that during this time there was considerable rain; that a bucket holds 3 gallons." This was all the evidence in the cause. The court gave two instructions at plaintiff's instance. The first was as to the effect to be given to the testimony of any witness whom the jury might believe had willfully sworn falsely, etc. No point is made as to that, here. The second was as follows, viz.: "No. 2. The court instructs the jury, if they believe from the evidence that plaintiff dug the well for the defendant, and obtained the amount of water agreed upon by the parties when they made said contract for the digging of the same, they will find for the plaintiff." To the giving of the latter instruction, defendant excepted at the time. The jury returned a verdict for plaintiff for $44.40, and the court then rendered judgment accordingly. Defendant's motion for new trial was based on these grounds, viz.: (1) Because the jury decided the case against the law and the evidence; (2) because the jury disregarded the instructions of the court; (3) because the jury decided the case against the weight of the evidence; (4) facts relating to argument of plaintiff's counsel, not supported by proof and not argued here; (5) because the court erred in allowing the case to go to the jury upon the evidence, for the reason that the same was not responsive to plaintiff's complaint; (6) because the evidence of plaintiff proved a contract entirely different from that alleged; (7) because the court erred in giving instruction No. 2 on part of plaintiff over the objection of defendant; (8) because instruction No. 2 given on part of plaintiff is misleading. In defendant's motion in arrest the only new ground assigned was that "no sufficient cause of action was ever filed in the case." These motions were overruled,...