Sayers v. Craven

BROADDUS, J. We adopt the following statement of the pleadings by appellant as it is admitted to be correct: The plaintiff’s petition is in three counts. In the first count he seeks to recover the sum of $750, as the reasonable value of services alleged to have been rendered by him for the defendant in advertising and talking up, and using his best efforts to 'create a general public opinion that certain lands, known as the Shoemaker land, in which defendant was interested, were valuable for zinc and lead. In the second count plaintiff alleged that he had an option on the mine known as the Mark Hanna mine, and that he sold the same to defendant and R. T. Stickney for $125, one-half of which was to be paid by each of the purchasers; and that defendant further agreed to pay plaintiff one-half of whatever profit defendant might make by the purchase and sale of said mine, under said option; that defendant made a clear profit of $2,200, and plaintiff sought to recover judgment against him for $1,162.50 on this count. In the third count it was alleged that plaintiff procured an option on what was known as the Spaulding land, having the privilege thereby to sell the property for a specified sum, within a limited time, and for the purpose of being better able to sell and transfer the option, plaintiff agreed with defendant that the option should be made to, and in the name of the defendant upon the condition that defendant should pay nothing therefor; that they should divide and take in equal shares the proceeds of the sale and transfer of said option; that afterwards plaintiff negotiated a sale of the option for $600 and that defendant collected the money therefor, and paid the plaintiff only $200, leaving a balance of $100 due him on that account. The answer of the defendant consisted of first, a general denial of each allegation in all the counts of the petition. [411] Further answering the second count in plaintiff’s petition, the defendant alleged that the option on the Mark Hanna mine was sold by plaintiff to defendant and R. T. Stickney for $125, one-half to be paid by each purchaser, and that the full amount had been paid plaintiff before the bringing of this suit; that • defendant never promised to pay plaintiff any additional sum. Further answering the third count, the answer alleged that the defendant procured the option on the Spaulding land, and sold the same for $600, and that defendant having been to considerable expense in procuring the option and sale thereof, paid plaintiff $200 in full settlement of any and all claims or demands which plaintiff might'make on account of his connection in procuring said option; and for any services rendered by him for the defendant. The answer further alleged that the defendant had fully paid plaintiff for any and all services rendered for the defendant and owing by the defendant to plaintiff, and that the defendant was not indebted to the plaintiff for any amount for any services rendered; but on the contrary, that plaintiff was indebted to defendant on divers and sundry accounts. The plaintiff ’s reply consisted of a general denial. The case was tried before a jury on June 18, 1901, and resulted in a verdict for the plaintiff on the first count for $100; on the second count for $62.50, and on third count for $100. After an unsuccessful motion for a new trial, the defendant brings the case to this court by appeal. The defendant insists that, as there was no evidence showing the reasonable value of the services claimed in the first count of the petition, or that they were of any value whatever, the court erred in submitting that issue to the jury. The plaintiff testified as to the services he rendered as alleged, but failed to state their value, or to. introduce any evidence whatever in that respect. In Murray v. Railway, 101 Mo. 236, it was [412] held that “the jurors might measure the value of the services of a nurse by their own knowledge and experience, and detailed proof of their value was not requisite. This rule was recognized in Rhodes v. Nevada, 47 Mo. App. 499, and the distinction drawn between professional service, such as that of a physician, and that of a common laborer. Here, the services, though not those of a common laborer, might be classed with those of a nurse; and the jurors, under the rule, were competent to estimate their value. See also Loe v. Railway, 57 Mo. App. 350. It was not error, therefore, to instruct upon said issue.” Defendant contends that the jury disregarded the evidence in their verdict on the second count of plaintiff’s petition, viz.: As the evidence of plaintiff tended to show that he had not received the $62.50 which the defendant Was to have paid him on the option of the Mark Hanna mine, yet as he admitted he received a due-bill from defendant for $135 in addition to the $200 paid liim on the Spaulding deal, the jury should have given him credit for the'same on said second count. The verdict of the jury on said second count for $62.50 shows conclusively that it did not give defendant credit for the amount of said duebill or any part thereof; for $62.50 was what plaintiff was entitled to receive on the transaction unless the jury allowed him for a part of the profits of the deal, which they evidently did not do. And we do not think the jury was authorized on defendant’s answer to said second count to allow the amount of said duebill as a credit. Defendant’s answer to said count specifically alleges that he paid the amount claimed only, and does not set up said duebill as either a payment or set-off, or counterclaim. It is true that generally without reference to any particular count of the petition he alleges “that he has fully paid plaintiff for any and all services rendered by plaintiff for the defendant, and for any and all indebtedness arising on any account and owing by defendant, ” etc., but he does [413] not state what payments were made and upon what transaction had between the parties. But such- general allegation must be disregarded and reference had to the specific allegations of payments as stated in his answer to each count, to determine what credits he was entitled to under each count. ' This is a familiar rule of pleading. The defendant objects to the instruction given by the court on the third count of the petition, because it precluded the jury from taking into consideration the money necessary to be expended by him in carrying out the transaction upon which plaintiff seeks to recover. His contention is outside of the issue presented by the pleadings. The defendant’s answer to said count is that he had a settlement with plaintiff on said transaction, including his said expenses, and that by agreement he paid plaintiff $200 in full for any and all claims he had against him growing out of the same. In other words, his answer was accord and satisfaction. The payment of the $200 was not in dispute and the instruction of the court recognizes this payment and the jury are told that defendant is entitled to credit to that extent. The issue as to whether there was such accord and satisfaction was submitted to the jury, and the defendant did not ask to have it submitted. His defense therefore was restricted to his plea. The instruction complained of submitted plaintiff’s theory of the case properly to the jury. The plaintiff’s instructions seem- to have been drawn with great care and the case was well tried without any error whatever that we can discover. The cause is affirmed. All concur.