Wenninger v. Mitchell

Citation122 S.W. 1130,139 Mo. App. 420
PartiesWENNINGER v. MITCHELL et al.
Decision Date15 November 1909
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Schuyler County; Nat. M. Shelton, Judge.

Action by Dora Wenninger against D. B. Mitchell and others. Case was referred to a referee, who made findings for plaintiff, but on exceptions to the report the court entered judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions to overrule objections to the referee's report, and enter judgment thereon for plaintiff.

Thos. L. Buford and Fogle & Fogle, for appellant. Wm. Saxbury and Higbee & Mills, for respondents.

ELLISON, J.

Plaintiff instituted this action by filing a bill in equity praying for dissolution of a partnership with defendants, and for an accounting. The case was referred to a referee, who took the evidence brought forward by the parties and made his findings for the plaintiff. Exceptions were taken to his report, which the court sustained, and entered a judgment for the defendants.

It appears that plaintiff was a widow and that her name was Skinner; that her husband died in 1905, and that afterwards, in the latter part of the summer or early fall of 1906, she returned to Queen City, Schuyler county, Mo. (the seat of this controversy), where she had formerly lived, and went to board with defendants, who are husband and wife. Defendant D. B. Mitchell was engaged in the livery stable business in that town, and shortly after plaintiff came to his house he sold her a half interest in the business and livery stock for $500 in cash. It seems that plaintiff desired to get married again, and was so anxious in that regard that she advertised for a husband in the newspapers through a matrimonial agency. In this way one Wenninger, of Lincoln, Neb., learned of her, and he, too, wanting to get married, entered into a correspondence with plaintiff, which quickly resulted in an engagement and shortly thereafter their marriage. In thus getting a husband plaintiff wittingly or unwittingly laid the foundation for the defense to this action. Defendants admit that plaintiff purchased a one-half interest in the livery stable for $500 and became a partner in the business. But they claim that she said to Mrs. Mitchell, before she purchased the interest in the livery stable, that she would pay well if we "would assist her in getting a man"; that after she purchased of them the interest in the stable, "she said if we would help her get this man, she would give us her interest in the barn for our service." Defendants say they carried out their part of the agreement, and that plaintiff's interest in the barn became theirs. We will examine the record to see what substance of law or fact there may be in this claim.

In the first place we find the work claimed to have been performed by defendants for plaintiff to be of such trifling nature as not to deserve serious consideration. It consisted principally in writing two letters. The time covered by this "service" was between the middle of September and the 24th of October, for the first letter was written two or three weeks after plaintiff arrived at their house, which was the latter part of August, and the last one must have been prior to October 24th, as that was the day of the marriage. Thus some time within the space of four or five weeks, Mrs. Mitchell wrote two letters at plaintiff's dictation. The record does not disclose how long a time this took, but the simple matter of writing two letters could not have taken long. Suffice it to say we cannot bring ourselves to believe the task was worth one-half of a livery stable, for which plaintiff had just paid defendants $500.

But defendants will say that the foregoing was not all the service they performed "in getting a man" for plaintiff. Their further claim came about in this way: It seems that Wenninger, recognizing the custom in such affairs, endeavored to seek plaintiff by going to her and having the wedding at her home. But counsel say the "Fates" interfered, and as he was on his way to the train in Lincoln, he met with an accident on a street car, the nature of which is not disclosed. However, he immediately instituted an action for damages against the street railway, and wrote to plaintiff the reason for his failure to appear at her home. It was then arranged by plaintiff that she would go to Lincoln, and the ceremony could be performed notwithstanding the misfortune. Plaintiff invited defendants to the wedding, and Mrs. Mitchell straightway accepted, or at least immediately expressed a desire to go, but Mr. Mitchell gave evidence of some hesitation. He said he was "short of money." At any rate, when he was informed of a matter to be presently mentioned, he too accepted, and all three started for the wedding. It is for thus attending the wedding that the additional service is made up. It is so out of the ordinary for one to charge for an acceptance of an invitation to a wedding that we find difficulty in allowing that it should be done in this instance. The record is silent as to any inconvenience to defendants. It does show that Mrs. Mitchell had never traveled much, and when we reflect on the pleasure it ordinarily must be to be favored with an invitation to a trip from a country village to a distant city to attend a wedding, and, as they said, partake of a "wedding feast," we are again loath to allow any charge in a proceeding in equity. But this is not all to be said on this head, in plaintiff's behalf and defendants' condemnation. Plaintiff paid the expenses of Mrs. Mitchell, and gave Mr. Mitchell a new bedstead. When he learned that plaintiff was to pay his wife's expenses for the trip and to give him her new bedstead, his objection softened, and the hesitation noted above faded away. These considerations make it a matter of some wonder how this branch of the defense, so extraordinary in its nature, could have been set up. Yet, notwithstanding the foregoing considerations, it must be conceded that the record discloses some evidence of an agreement on plaintiff's part, though she testified that there was not. For the reasons following it will not be necessary for us to say whether she did, in fact,...

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