Judy v. Duncan

Ellison, J. — This action was instituted against the defendant for the sum of two hundred and fifty dollars, which defendant had, as is alleged, received to the use of plaintiff, and which 'he had failed, on demand, to pay over. D efendant answered, admitting the receipt of three hundred dollars at the time stated in the petition, which he had credited to plaintiff on account of certain fees due him for legal services rendered at plaintiff’s instance. That said services were of the reasonable value of five hundred dollars, and that after crediting the plaintiff with said sum of three hundred dollars, there still remained due and owing defendant the sum of two hundred [550] dollai’s, for which, he asked judgment. Plaintiff filed a reply to this answer, which was simply a general denial. The court gave two instructions of its own motion, there being none asked by either party. I set out the first one-as being sufficient to make clear the opinion we entertain as to the correctness of the trial court’s action in submitting them to the jury : “If the contract between plaintiff and defendant for a fee of twenty-five dollars, was intended by the parties to cover all the services which defendant was to render, and did render, in the case referred to in the testimony, then the verdict should be for the plaintiff, for the difference between twenty-five dollars and the aggregate sum of three hundred dollars, and the value of the-coal furnished defendant by plaintiff, together with interest on the amount of such difference from the day of the institution of this suit, to-wit, January 9, 1885.” The jury returned a verdict for plaintiff for one hundred and twenty-three dollars, and defendant appeals. The answer admitted receiving the money, and in effect made out a case on quantum meruit against plaintiff for services rendered him at his special instance and request. The reply being a general denial, would not justify the proof of new matter by the plaintiff. From the instruction, it would appear that evidence of the payment of coal had been made to defendant on account of his services, or else plaintiff’s claim for coal has been introduced as a set-off. The evidence is not preserved in. the record, and we cannot say exactly how the matter-found its way into the case. But whether payment or set-off, it should have been pleaded as new matter. Wilkerson v. Farnham, 82 Mo. 672, 678; Greenway v. James, 326, 328; Kersey v. Gaston, 77 Mo. 645; Edwards' Adm' r v. Giboney, 51 Mo. 129. The evidence should be confined to the case made by the pleadings. The judgment is reversed and the cause remanded* All concur.,