Yount v. Spain

• Court: Missouri Court of Appeals
• Writing for the Court: Farrington
• Citation: Yount v. Spain, 180 S.W. 17 (Mo. App. 1915)
• Decision Date: 18 November 1915
• Docket Number: No. 1391.,1391.
• Parties: YOUNT v. SPAIN

180 S.W. 17

YOUNT v. SPAIN

No. 1391.

Springfield Court of Appeals, Missouri.

November 18, 1915.

Appeal from Circuit Court, Barry County; Carr McNatt, Judge.

Action by Alta Yount against L. S. Spain. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded.

James E. Sater, of Monett, for appellant. J. W. George, of Cassville, for respondent.

FARRINGTON, J.

This suit was instituted in a justice court on a statement claiming $79.42 for 19 weeks and 6 days' labor at $4 per week, and $12 for money lent, a total of $91.42. Plaintiff prevailed in the justice court, and obtained a verdict for $70, when the case was taken on appeal to the circuit court. No formal pleading was filed by the defendant. The case is here on defendant's appeal.

Defendant and one Brixey as partners conducted a small hotel at Cassville. Defendant and his wife worked there, and to offset their work Brixey hired the plaintiff and another girl and paid them, and defendant had nothing to do with the hiring or paying of the plaintiff while Brixey remained a partner. Plaintiff came to the hotel on July 29, 1914. She worked there one month for Brixey and received a check in payment from him, at which time he retired from the business. Plaintiff is a sister-in-law of the defendant, being the sister of Mrs. Spain. She worked at the hotel until about December 14, 1914. Plaintiff testified that she was not to draw on defendant for any pay until she quit, but that they agreed on $4 per week. It is not disputed that she worked there during the time mentioned. She testified that she loaned the defendant $12. Plaintiff stated that defendant paid her $10 the day before she left, and paid a millinery bill for her, and that during her stay Mrs. Spain ordered and paid for a bill of goods for her amounting to about $12.

Defendant testified that he gave her $2 at one time, paid her $10 the day before she left, and another $10 the day she left; also that he paid a milliner's bill for her of $7.70, and that the draft for the bill of goods was $16.64. He said he never borrowed $12 from her, but that she gave him $11 the night she came, and then turned over to him a check for $16, which she received from Brixey, making $27. He said there was no understanding how much she was to receive a week "but we settled on $3 per week." He testified that his wife did the tiring at the hotel, and had authority to settle with plaintiff. Ola White, a sister of plaintiff and Mrs. Spain, testified she was working at the hotel during the time plaintiff worked there, and gave this version of what occurred:

"Q. Just a short time before leaving, I wish you would tell the jury what was said and done by Miss Yount and your sister in regard to this account? A. They settled it. She figured up the way it was and it was $19.25. She counted in the bills with the checks all that was coming to her. She counted that in and it was $19.25. and my sister went into the dining room and told Sherman to come in and give her $10, so he went in and gave her $10. I saw him. It was a bill. My sister said to her, `Mi. Spain gave me $10, and that leaves $9.25, and when I leave you pay Mrs. Hawk (the milliner) the bill I owe her; if there is anything left, you can send it to me.'"

There was no objection to this testimony. However, when Mrs. Spain took the stand and testified that plaintiff figured up the account and said there was $19.25 due after counting out what they had bought for her, the trial judge asked if there was a settlement pleaded. Being told that the suit originated in a justice court, the judge remarked that a settlement has to be pleaded in a justice court, but permitted the witness to testify further that plaintiff said the bill was $19.25, and that she took plaintiff's figures for it; that plaintiff had a piece of paper and figured in all the various articles they had bought for her, and that after the settlement plaintiff destroyed the piece of paper.

The court gave three instructions for the plaintiff, advancing her theory that she was to get $4 per week, and that she loaned defendant $12, but directing the jury to deduct whatever they found defendant had paid her in money or merchandise.

The defendant requested but one instruction, as follows:

"The court instructs the jury that if you find and believe from the evidence that the plaintiff and the wife of the defendant, as his agent, agreed upon $19.25 being the amount due her, then in that event such an amount agreed upon as aforesaid is the only amount you can take into consideration in determining the indebtedness of defendant, and you will deduct from said sum such amounts, if any, paid by defendant, in determining whether he owes her anything."

This instruction the court refused to give, and defendant now complains that reversible error was thereby committed.

Section 7412, R. S. 1909, provides that no formal pleadings upon the part of either plaintiff or defendant shall be required in a justice's court, and after outlining what the plaintiff...