Thornton v. Mersereau

REYNOLDS, P. J. Tbe petition in this case as originally framed consisted of four counts. The first and fourth were abandoned at tbe trial, and while there was a verdict for plaintiff on tbe third count, be remitted all of that verdict so that tbe only count necessary for consideration is tbe second. That states — 6 — that plaintiff entered into the service of defendant, at the request of defendant, and served as superintendent of construction of certain construction work, the work being the construction of certain alleys, in the city of St. Louis and the construction of certain abutments in St. Louis county of a railroad; that he was engaged in the work for thirty-three and one-half weeks, with the exception of three weeks; that the reasonable value of the services was twenty-five dollars per week, making a total of $833.33 and that the only money he had been paid as compensation for his work amounted to $175.25. Judgment was demanded for the difference. The answer was a general denial. The jury returned a verdict, in favor of plaintiff on the second count for $500, and on the third count for fifty dollars, but under a motion for new trial filed by defendant, plaintiff remitted $175 of the verdict as to the second count and all of the amount returned on the third count. Judgment followed, defendant filing motions for new trial and in arrest, saving exception to the overruling of these, has duly perfected his appeal to this court. The evidence of plaintiff as to the second count tended to show that he had an agreement with defendant as to superintending the doing of the work mentioned in the petition and that he was to receive a certain sum per week, also another sum as board money, and to have a share in the profits of the contracts under which the work was to be done; that defendant had failed to keep the contract. Appellant make's six assignments of error here. First, to the refusal of an instruction in the nature of a demurrer to the evidence under the second count, asked at the close of plaintiff’s evidence and of the whole case. Second, to error in the admission of certain evidence offered by plaintiff, it being contended that it was improper, incompetent, irrelevant and im — 7 — material; and third, error of the court in giving an instruction at the instance of plaintiff and in refusing an instruction asked by defendant. Fourth, that the' verdict and judgment is for the wrong party. Fifth, that it is the result of passion, prejudice and sympathy, and finally for the error of the court in overruling defendant’s motion for new trial and his motion in arrest. Taking these up in their order, we cannot agree, «even on the showing made by counsel for defendant, that the demurrer to the evidence under the second count of the petition should have been sustained. There was evidence given on the part of plaintiff in support of that count and while the testimony of the witnesses for plaintiff and defendant was very contradictory over this, its determination was for the jury and their finding is conclusive. Counsel under this assignment argues that plaintiff’s testimony is not entitled to belief. That matter was distinctly submitted to the jury by the instruction given at the. instance of appellant, that if the jury believed from the evidence that any witness had wilfully sworn falsely to any material fact, tlie jury was entitled to reject the testimony of that witness. The jury was further told by an instruction asked by appellant, that the burthen of proof was on plaintiff and that he must prove his case by the . greater weight of the evidence, and if the jury found from the evidence that plaintiff had failed to prove his case as to any one or more counts of his petition by the greater weight of the testimony, their verdict should be for defendant as to such count or counts. So that we rule the first assignment of error against appellant. • The second assignment as to the admission of improper evidence is founded on evidence given by a certain witness, who testified that he was in appellant’s office with respondent, was a party to the conversation between them, and in that conversation de — 8 — fendant had agreed to give ■ plaintiff and witness two, dollars a week each as. expense money. Defendant objected to this and moved to .strike out the evidence of the witness “because it is not shown.that that contract was ever carried out;” that plaintiff’s evidence shows that this witness never became a party to any of this transaction at that time, and further that what the witness testified to was a conclusion, and counsel moved to have it stricken out. Counsel for appellant argues that it is apparent that if there was an agreement made between plaintiff, defendant and this witness, that contract, so far as the witness was concerned, was never carried out, and the fact that a contract of this character may have been made, to which, the witness was a party and "which is shown by his-own testimony and that of plaintiff had never been.carried out, is not admissible to prove and does not, tend to prove that there was a contract between plaintiff and defendant, as the witness had testified that they were wholly unsuccessful in getting work and that he (witness) quit. There is no pretense that the contract between the witness and plaintiff on the one, hand was a joint contract between them and defendant, so that while it was immaterial whether the witness had carried it out or not, his testimony was most-clearly relevant, material and competent as tending to prove the contract on behalf of plaintiff with defendant. That error assigned is not tenable. The third assignment of error relates to the giving of an instruction at the instance of plaintiff and the refusing of one asked by defendant. The instruction given at the instance of plaintiff, of which complaint is made, in substance, is as follows: That if the jury found from the evidence that plaintiff and defendant entered into an agreement whereby plaintiff was to perform services for defendant in the capacity of foreman of construction, and that, plaintiff did in fact perform , such services and such services — 9 — "were of value, then the jury will find for plaintiff for the reasonable value of such services as- they .may believe from all the evidence in the case plaintiff may be entitled to..' It is urged against this instruction that fit undertakes to cover the whole case and omits all ■reference to the defense set up by appéllant. The defense pleaded was a general denial. At the trial defendant, appellant here, undertook -to prove that in -point of fact plaintiff , was a partner with him in the •work of construction, payment for which is the basis ''of the action. It is the duty of the court, when undertaking to instruct on the whole case, to cover not only the plaintiff’s side of it but that of the defendant. Plaintiff testified that he and defendant were partners in the matter, defendant denying partnership and claiming an interest in profits only, which he testified had- not 'been paid him, hence'-his action on quantum meruit. ■The fact of partnership is a matter for the determination of the jury, if there are facts in evidence author- ' izing a verdict to that effect (McDonald v. Matney, 82 Mo. 358); and the-character of the- contract between ■the parties is to'be deduced from the evidence (Torbert v. Jeffrey, 161 Mo. 645, l. c. 654, 61 S. W. 823); and it is for the court to' determine whether there is ' such evidence before the jury as will entitle them to find partnership. [Edgell v. Macqueen, 8 Mo. App. 71, l. c. 76; Carson et al. v. Culver et al., 78 Mo. App. 597, l. c. 603.] “ A mere participation in-the profits and 'loss does not necessarily constitute a partnership, be- ' tween the parties so participating, ’ ’ says our Supreme •Court in McDonald v. Matney, supra, l. c. 365, citing and quoting from several cases. [See also Torbert v. Jeffrey, supra, and Nugent v. Armour Packing Co., 208 Mo. 480, l. c. 487, et seq., 106 S. W. 648.] With • this evidence in the case, the majority of our court hold that the trial court, in undertaking to instruct on the whole case, should have covered this issue. 1 — 10 — do not agree to that. Counsel for -respondent argues that as there was no plea of partnership, the answer being a general denial, that the evidence as to partnership should have been disregarded. Whether it should have been pleaded is not necessary to decide, as the evidence concerning it went in without objection. Appellant complains of the refusal of the court to give an instruction ashed by him which, in substance, told the jury that if it believed from, the evidence that the services mentioned in the second count of the petition were performed under an agreement between plaintiff and defendant and that defendant “did not under such agreement mentioned in these instructions, agree to pay plaintiff a salary for all or any part of such services, then plaintiff is not entitled to recover on the second count of his petition, and ■your verdict on such count will be for defendant.” This instruction is not correct and should not have been given in the form- asked; it would have been error to say that plaintiff could not recover for “all or any part,” unless defendant had agreed to pay plaintiff for all or any part, for- the plaintiff surely was entitled, to recover for that part of the services he might have proved he had rendered. The above assignments are the material ones. As the judgment will be reversed and the cause remanded, it is unnecessary to consider the assignment as. to the amount of the verdict. We find no suggestion whatever in the argument of counsel for appellant even tending to show why the motion in arrest of judgment should be sustained. For error in the first instruction, in that it fails to cover the whole case, while purporting to do so, the majority of the court are of the opinion, that the judgment-should be reversed and the cause remanded. It is so ordered. ■