Feeney v. Chapman

BLAND, P. J. There is evidence in the record tending to support the finding of the referee, that is, that it was mutually understood between Dr. Bartlett and the respondent, that the professional services rendered by each for the other should be offset, one against the other. There can be no doubt of the fact that respondent understood that the services should [374] be offset and there is evidence tending to show Dr. Bartlett had the same understanding. The report of the referee, therefore, has support in the evidence, and his finding of the fact that the practices should be offset is not reversible error in this court, since it has the force and effect of a special verdict. Dempsey v. Schawacker, 140 Mo. loc. cit. 685; Darling v. Potts, 118 Mo. loc. cit. 529; Chew v. Ellingwood, 86 Mo. loc. cit. 269; Gimbel v. Pignero et al., 62 Mo. loc. cit. 242; State ex rel. v. Burckhartt, 83 Mo. loc. cit. 432. The contention of appellant is that the finding of facts by the referee is different from any theory of the case set up in the petition or answer, and for that reason should be set aside; that a defense not set up nor embraced in the answer can be made the basis of a verdict (or its equivalent, the foundation for the finding by a referee), is too well-settled law to need the citation of authorities in its support. The answer of respondent contains a general denial. Where the general issue is pleaded, evidence is admissible which tends to show that the cause of action never existed. Scudder v. Atwood, 55 Mo. App. l. c. 521, and cases cited. That the cause of action never existed, is the exact facts found by the referee, that is, that the entries made in his book of accounts by Dr. Bartlett in the form of charges against respondent were not made with the intention on the part of Dr. Bartlett as an account of indebtedness due him from respondent but that the professional services rendered by him to respondent, and of which he made memoranda, were rendered with the understanding that they were offset by professional services rendered by respondent to him. The finding of the referee is supported by the evidence, and is not outside of the scope of the defense made by the general denial. We, therefore, affirm the judgment. All concur.