Raines v. John Lumpee & Co.

ELLISON, J. [205] Appellate and trial practice reference long account: review of referree's report. [204] Defendants are merchants conducting-a store of general merchandise and dealt also in railroad ties. They had a contract with a partnership known as Harvey & Franklin, whereby they were to furnish ties to the latter at agreed prices. Defendants then contracted with plaintiff to-furnish ties to Harvey & Franklin. Many of them were taken to the Osage river and floated to destination. It may be said for the purposes of this case that they sublet-their contract. [205] to plaintiff; it being understood that plaintiff would give orders on them for the payment of the ties to the different parties from whom he purchased. These orders were filled by defendants in the sale of goods to the parties, or in cash, or in both. The plaintiff has brought this action claiming there was a balance due him, which defendants dispute. The matter involves a long accounting covering a long list of items, charges and credits. The case is of such nature that the trial court had a right under the terms of section 2138, Revised Statutes 1889, to order a reference to a referee without regard to the wishes of the litigants. In such case the trial court may examine the evidence reported without -being bound by the finding of the referee. Caruth v. Wolter, 91 Mo. 484; Tobacco Co. v. Walker, 123 Mo. 662; Bissell v. Warde, 129 Mo. 439. And this court may do so without being bound by either. The case was therefore referred by the court notwithstanding defendants’ objections thereto. The referee heard much testimony and made his finding in plaintiff’s favor for the sum of $626.65. The circuit court confirmed the report “except as to rafts 2, 4 and 1 upon which "the court makes no finding because the evidence is incomplete. And these three rafts are left out of consideration, and open to determination by any court of competent jurisdiction before which the same may come for adjudication.” Trial practice: reviewing report of referee: duty of trial court. We are of the opinion that the trial court should have made a finding on these items, or else have re-referred the matter. If the evidence was incomplete then a finding might have been made against him whose duty it was to make it complete, against him upon whom the onus was. But neither of these courses was pursued and we have a case before us on appeal, a part of which has not been passed upon by the trial court. The trial court is not under the necessity of adopting or rejecting the referee’s [206] report as a whole. It may be modified. Smith v. Paris,70 Mo. 615. Or an entirely different result may be reached. O’Neill v. Capelle, 62 Mo. 202. But it is the duty of the court in making final disposition of the case to pass on the whole of it and not put the parties to the inconvenience and cost of an independent suit on the same matter, since there can be no assurance that the same indefiniteness will not again occur. The judgment will be reversed and the cause remanded. All concur.