Wiggins v. Graham

• Decision Date: 31 October 1872
• Citation: 51 Mo. 17
• Parties: W. C. R. WIGGINS, Respondent, v. MADISON GRAHAM, Appellant.
• Court: Missouri Supreme Court

51 Mo. 17

W. C. R. WIGGINS, Respondent,

v.MADISON GRAHAM, Appellant.

Supreme Court of Missouri.

October Term, 1872.

Appeal from Jefferson Circuit Court.

Greene and Williams, for appellant.

J. L. Thomas & Bros., for respondent.

ADAMS, Judge, delivered the opinion of the court.

The defendant was a merchant, and employed the plaintiff as clerk to take charge of and manage his business for one year ending March, 1871, for which he agreed to pay him one-third of the net profits. This action was brought on this agreement, and the petition alleges that the net profits of the business amounted to $1,998.28, of which the plaintiff claimed one-third as the amount due him under the agreement. The agreement is admitted by the answer, but the defendant denies that there were any net profits. Whether there were any net profits or not was the issue presented by the pleadings and tried in the Circuit Court. The case was submitted to a jury and resulted in a verdict for the plaintiff. On the trial the plaintiff was introduced as a witness, and produced abstracts from the books of the defendant, which books he himself had kept. These abstracts were read to the jury as evidence. The first abstract was a memorandum of the amount of goods on hand, the amount of accounts and debts due to and by defendant, and showing the balance as the stock on hand when the plaintiff entered into his service. The second abstract was the same kind of account taken at the time the plaintiff left the defendant's service at the end of the year, and, deducting the first from the last, left the balance of $1,909.28, which the plaintiff claimed was the net profits; and this was substantially the evidence upon which plaintiff relied for a verdict, and a verdict was found for him on this basis. The defendant, on his part, gave evidence conducing to prove that the plaintiff had, during his employment, the custody of the books from which these abstracts were taken, and made all the entries thereon; and he offered to prove that the plaintiff had made false and fraudulent entries on them so as to show larger profits than really existed. But the court excluded this evidence on the alleged ground that no foundation had been laid in the answer by averments to that effect to warrant its admission, and the defendant excepted. After the evidence was closed, the court, at the instance of the plaintiff, gave this instruction to the jury:

“The court instructs the jury that the rule by which the net profits of any business for a given year are ascertained, is to ascertain the amount of stock, including the goods, wares and merchandise, or property and debts due to the business on notes and accounts, at the beginning of the year, from which the debts due by the business on notes and accounts should be deducted, the balance showing the net stock at the beginning of the year; and then to ascertain in the same way the net stock on hand at the end of the year, the difference between the net stock at the beginning of the year and the net stock at the end of the year being the net profits; and if the jury believe from the evidence that defendant employed plaintiff to act as his clerk in his business as a merchant near Morse's Mill, in Jefferson county, Mo., for the year ending March 25, 1871, and agreed to pay him one-third of the net profits of the business for that time for his services as such clerk, and that plaintiff acted as clerk of the defendant in said business according to his agreement, then the jury will allow plaintiff one-third of the net...