Wentzville Tobacco Company v. Walker

• Citation: 27 S.W. 639,123 Mo. 662
• Parties: Wentzville Tobacco Company, Appellant, v. Walker et al
• Decision Date: 09 July 1894
• Court: United States State Supreme Court of Missouri

27 S.W. 639

123 Mo. 662

Wentzville Tobacco Company, Appellant, v. Walker et al

Supreme Court of Missouri, First Division

July 9, 1894

Appeal from St. Charles Circuit Court. -- Hon. W. W. Edwards, Judge.

Affirmed.

T. F McDearmon for appellant.

(1) The circuit court erred in overruling plaintiff's motion to strike out part of defendant's answer. That part of the answer embraced in said motion set up a counterclaim or set-off and constituted no legal defense to the action. State to use v. Modrell, 15 Mo. 421; Johnson v Jones, 16 Mo. 494; Vastine v. Dinan, 42 Mo 269; Brake v. Carning, 19 Mo. 125; State ex rel. v. Eldrige, 65 Mo. 584; Mahan v. Ross, 18 Mo. 121; Pratt v. Menkins, 18 Mo. 158; May to use v. Kellar, 1 Mo.App. 381; Waterman on Set-Off, p. 341, sec. 288. (2) The court erred in overruling plaintiff's motion to strike from the files the separate amended answer of T. C. Boyd, H. T. Peddleton and Charles J. Walker, executor of Mary D. Linn, deceased, sureties on the bond sued on, filed after the first report of the referee had been filed in court. R. S. 1889, secs. 2101, 2098, 2117; Archer v. Ins. Co., 43 Mo. 434; Martin v. Martin's Adm'r, 27 Mo. 227; Stewart v. Glenn, 58 Mo. 481; Garton v. Cannada, 39 Mo. 357; Irwin v. Chiles, 28 Mo. 576; Singer Mfg. Co. v. Givens, 35 Mo.App. 602; Newman v. Kenton, 79 Mo. 385; Carr v. Moss, 87 Mo. 447; Sims v. Field, 24 Mo. 557. (3) The court erred in sustaining defendants' exceptions to the first report of the referee filed in the case. The exceptions were sustained solely upon the referee's finding of the facts. The court approved of the referee's ruling on the admission and rejection of testimony. The referee's finding of the facts was conclusive. The report of a referee in an action at law, has the effect of a special finding by a jury and where there is evidence tending to establish the fact the court can not disturb the referee's finding. R. S. 1889, secs. 2138, 2139, 2155; Ferry Co. v. Railroad, 73 Mo. 389; State ex rel. v. Burckhart, 83 Mo. 430; Vogt v. Butler, 105 Mo. 479; Clark v. Phillips, 99 Mo. 650; Father Mathew Society v. Fitzwilliams, 84 Mo. 406; Franz v. Dietrich, 49 Mo. 95; Dingfelder v. Brewing Co., 103 Mo. 578; Benev. Ass'n v. Kribben, 48 Mo. 37; Singer Mfg. Co. v. Givens, 35 Mo.App. 602; Dunlap v. Social Club, 25 Mo.App. 180; Mursman v. Mursman, 29 Mo.App. 649; McGinnis v. Mitchell, 21 Mo.App. 493; Kennard v. Peck, 19 Mo.App. 343; Prendergast v. Eyerman, 16 Mo.App. 387. (4) The court erred in instructions or directions given the referee after sustaining exceptions to the first report of the referee. The instructions contained two legal propositions. First, that under the testimony reported by the referee the securities were liable. Second, that the books kept by Walker were competent evidence in his favor. (5) The books were not legal evidence in favor of the defendant, the testimony of the book keeper, defendant Walker himself, showing that the books were full of errors. Hessrick v. McPherson, 20 Mo. 310; Anderson v. Volmer, 49 Mo. 407; Nepper v. Jones, 27 Mo.App. 538; Cozens v. Basset, 23 Mo.App. 544; Hanson v. Jones, 20 Mo.App. 595; Lord v. Siegel, 5 Mo.App. 582; State v. Findley, 101 Mo. 217; Robinson v. Smith, 111 Mo. 205; Anchor Milling Co. v. Walsh, 108 Mo. 277. (6) The court erred in sustaining defendant's motion for a new trial after the court had overruled defendant's exceptions to the second report of the referee. The affidavits filed therewith did not conform to the rule in regard to diligence and materiality. Goff v. Mulholland, 33 Mo. 203; Miller v. Whitson, 40 Mo. 97; Barry v. Blumenthal, 32 Mo. 29; Richardson v. Farmer, 36 Mo. 35; Callahan v. Cafferata, 39 Mo. 136; Tilford v. Ramsey, 43 Mo. 410; Jaccard v. Davis, 43 Mo. 535; Smith v. Mathews, 6 Mo. 600; Dollman v. Munson, 90 Mo. 85; State v. Woodward, 95 Mo. 129; State v. Musick, 101 Mo. 260; State v. Lichliter, 95 Mo. 402; State v. Crawford, 99 Mo. 74. (7) The court erred in rendering a judgment in favor of the defendants after sustaining the exceptions to the third report of the referee. The court should have recommitted the case to the same or another referee, or rendered judgment for plaintiff at least for nominal damages. Ham v. Hill, 29 Mo. 275; Hicks v. Hoose, 44 Mo.App. 571; Rowsey v. Lynch, 61 Mo. 560; Wilson v. Stilwill, 9 Ohio St. 467; Gilbert v. Win, 1 N.Y. 552.

C. W. Wilson for respondent.

(1) Appellant did not preserve its exceptions to the action of the court in the matters in question at the term of the court at which the actions complained of occurred. These exceptions should have been written and filed at the time or during the term at which they were taken. R. S. 1889, sec. 2168; Hurt v. King, 24 Mo.App. 593; State v. Ware, 69 Mo. 333. The matters complained of in these points occurred a year or two before the term at which the cause was finally disposed of, and no exceptions were made or preserved. (2) As to the action of the court in sustaining exceptions to first and second reports of the referee, and referring the cause back to him, these matters were waived by the plaintiff appearing and going to trial before the referee the third time. Callahan v. Shotwell, 60 Mo. 401. (3) But this case is exactly such as, by statute, may be referred. The trial of the issues of fact, involved the examination of a long account. R. S. 1889, sec. 2138; Walker v. Hurlstone, 92 Mo. 327, 332; Hardware Co. v. Wolter, 91 Mo. 484. (4) The statute authorizing such reference is constitutional. Edwardson v. Garnhart, 56 Mo. 81; Sheppard v. Bank, 15 Mo. 149. (5) Under the statute, this case being one involving the examination of a long account, the court had full authority to sustain exceptions to the last report of the referee, and review his findings and enter up such judgment as the evidence returned in the case justified. Walker v. Hurlstone, 92 Mo. 327; Hardware Co. v. Wolter, 91 Mo. 484. (6) All exceptions to the action of the referee must be preserved in writing; but the plaintiff filed no exceptions to the report or any action of the referee. R. S. 1889, sec. 2154. (7) The books of the Wentzville Tobacco Company, plaintiff, were properly admitted in evidence. Anchor Milling Co. v. Walsh, 108 Mo. 279; Robinson v. Smith, 111 Mo. 205. (8) The judgment of the trial court is right, because all the alleged defalcations and derelictions of duty on the part of defendant, W. W. Walker, occurred subsequent to his second appointment as secretary and treasurer in January, 1885. Bank v. Hunt, 72 Mo. 597; Moss v. State, 10 Mo. 339; Singer Mfg. Co. v. Hibbs, 21 Mo.App. 574; State ex rel. v. Boon, 44 Mo. 262. (9) This court will not reverse and remand the cause simply on the ground that plaintiff may have been entitled to nominal damages. This reduces the matter to a mere question of costs and this court will not interfere with the trial court in the matter of taxing the costs in the case. R. S. 1889, sec. 2923; Sowers v. Ingram, 74 Mo. 194. (10) The evidence shows that plaintiff was not entitled to nominal damages: First. Because plaintiff had, eight months or a year before the commencement of this action, made a complete settlement of accounts with its secretary and treasurer, W. W. Walker, paid him the balance shown due him on settlement. Quinlan v. Keiser, 66 Mo. 605; Kronenberger v. Binz, 56 Mo. 121; Reisenlister v. Lutherische Kirche, 29 Mo.App. 294. Second. Because, for the reason assigned under point 8, the plaintiff not being entitled to recover on the bond sued on, this action must fail as against all the parties. Clements v. Yates, 69 Mo. 625; Huston v. Forsyth, 56 Mo. 419; Link v. Vaughn, 17 Mo. 586.

Barclay, J. Black, C. J., and Brace and Macfarlane, JJ., concur.

OPINION

Barclay, J.

This is an action on a bond for $ 6,000, with collateral condition, executed by defendants to plaintiff.

The bond was conditioned for the faithful performance of the duties of secretary and treasurer of the plaintiff company, by Mr. W. W. Walker, the principal defendant.

The amended petition set up a number of breaches of the bond, consisting of a variety of alleged irregularities on the part of Mr. Walker, and furnished some forty items of specific charges of moneys received by him and not accounted for, or for which he took credit on the books without authority.

The petition also alleged that defendant Walker was indebted for many more items, which could not then be particularly mentioned, owing to his irregular mode of keeping the accounts of the company.

The final separate answer of the defendant sureties admitted the execution of the bond, etc., but denied all liability on account thereof, and especially all the charges of misconduct of their principal.

They also alleged that they were bound by the terms of their bond to answer for the conduct of Mr. W. W. Walker, only during his term as secretary and treasurer of plaintiff, which expired on the second Monday of January, 1885; and that during that period no misapplication of any funds by him took place.

The principal defendant stood upon the original answer, denying all the material charges of the petition and claiming a judgment against plaintiff for $ 500 on account of various items of money paid by him to the use of the company, at its instance, and for which he had not received credit.

On motion of defendants the cause was sent to a referee for trial of all the issues.

Many witnesses were examined, and the accounts stated by them bearing on various points of difference cover more than twenty pages of the printed matter on this appeal.

The referee reported to the court recommending a judgment for plaintiff for $ 1,209.69, though it had claimed a larger sum in the course of the hearing, and in the petition.

Defendants filed exceptions to...