132 Mo. 474 | Mo. | 1896
Thepetitionin this action contains two counts. The first alleges in substance that the plaintiff was employed by the defendant to buy and sell feed, hay, grain, etc., for the defendant, for which plaintiff was to receive one half of the profits on sales made by him after deducting certain charges for hauling, and that there is a balance due plaintiff amounting to the sum of $1,817.37on account of the profits on such sales made by him, for which he asks judgment. The second count alleges that at the request of the defendant the plaintiff rendered services in assisting defendant’s bookkeeper in keeping defendant’s books, which were of the reasonable value of $1,160, for which he asks judgment.
The answer to the second count was a general denial. To the first count that the defendant agreed to collect all bills and be accountable to the defendant for the full price of all goods sold by him; that during his said employment plaintiff sold goods of the defendant to divers persons who have not paid therefor, and who are insolvent, and to divers other persons from whom he collected the proceeds of such sales without accounting therefor, and sets up by way of counterclaim an itemized statement of the bills thus sold and
By consent, the cause was referred to Frank Hicks, Esq., to try all the issues and report his finding thereon. On the eighteenth of June, 1890, the referee filed his report, containing a clear and concise analysis of the voluminous evidence taken before him, and in substance finding that the plaintiff under the contract between the parties is entitled, on account of his share of the profits on sales made by him, to the sum of $1,802.84, and that he should be held responsible for all sales made by him, and that upon an accounting between plaintiff and defendant all sums due for merchandise sold by plaintiff during his employment should be charged to him; and that there is due and unpaid to the defendant for merchandise sold by plaintiff, from the following named persons, the following amounts, which should be charged to plaintiff:
Account of E. Kuhlman..................................... $ 188.99
Account of Sauer & Eagley................................ 2,290.00
Account of Henry Dedert.................................. 530.68
Account of Henry E. Rodeman.............................. 217.09
Account of Edward Henry.................................. 358.87
Notes of Edward Henry................................... 877.46
Account of T. P. Rusell..................................... 22.60
Account of J. P. Waldon.................................... 41.27
Account of H. Lewitz...................................... 72.47
Notes of B. Beyer.......................................... 150.00
Account of C. P. Mason.................................... 93.56
Account of Betz Bros...................................... 60.22
Account of Kavanaugh & Raynor........................... 338.97
Notes of B. Murnaghen..................................... 208.35
Making the aggregate so charged........................... $3,389.60
Both the parties filed exceptions to the referee’s report, which were overruled and the report confirmed, except as to one item charged against plaintiff, to wit, the note of E. Beyer for $150, which had in the meantime been paid, and judgment was thereupon entered against plaintiff for $1,436.76, upon payment of which the defendant was required to assign the notes and accounts aforesaid to the plaintiff.
Both parties moved for a new trial, and- the motions being overruled, the plaintiff excepted to the
1. The suit was instituted on the fourteenth of May, 1889. The judgment was rendered on the fourteenth of May, 1891. The motions for new trial were overruled on the twenty-fifth of June, 1891. The writ of error was issued on the twentieth of April, 1894, returnable to the ensuing October term, and notice thereof was served on the plaintiff on the fifth of September, 1894. On this state of facts the defendant moves to dismiss the writ of error because the same was not brought within three years after the rendering of the judgment. There is no question but that the writ of error was sued out within three years after the final judgment or decision of the court in the case, but counsel for defendant insist that the writ should be dismissed because notice of the suing out of the writ was not served within three years after final judgment.
The language of the statute is a sufficient answer to this contention.
The language of section 2275, Revised Statutes, 1889, is: “All writs of error upon any judgment or decision of any court in any case, whether civil or criminal, shall be brought within three years after the rendering of such judgment or decision, and not thereafter.”
And section 2290 is as follows: “Every person suing out a writ of error shall cause notice thereof in writing to be served on the adverse party or his attorney of record, twenty days before the return day of such writ. If such notice be not served, the writ shall be dismissed, unless good cause for such failure be shown.”
From the language of these two sections, it is clear that the writ must be sued out within the three years, and that then the notice thereof must be given within
2. The errors assigned by plaintiff for a reversal are:
First. The finding that plaintiff was responsible-for the Edward Henry notes amounting to the sum of $877.46.
Second. The finding that plaintiff performed the services as bookkeeper without any intention of being paid therefor.
The plaintiff contends that he ought not to be held responsible for the amount of the Henry notes because the defendant accepted new notes in renewal of the original notes after this suit was brought, although neither the new nor the old have ever been paid or delivered to Henry, but are still in the possession of the defendant in condition to be assigned to the plaintiff.
, This contention proceeds upon the mistaken idea, that as to such notes the plaintiff was surety for their payment, and that defendant by renewing the originals extended the time for the payment of the debt, and thereby discharged the surety. The defendant in his answer did not charge or seek to charge plaintiff with liability for the amount of Henry’s notes, as surety upon such notes, or as surety for the debt they were given for; nor did the plaintiff in his reply set up any such collateral undertaking and release as a defense to defendant’s counterclaim. Defendant’s action by way of counterclaim was upon an alleged contract by plaintiff to be responsible for the price of
3. As to the second assignment, it may be conceded that as between those among whom no family relation exists, the general rule is, where nothing to the contrary is shown, that whenever services are rendered and received, a contract of hiring or an obligation to pay will be implied, and that it is not necessary to show an express request or promise, and if the finding of the referee had gone no further than that the services in question had been rendered without any express request or promise, he would not on such finding have been warranted in disallowing compensation therefor; but he went further and found that the services were rendered by the plaintiff without any purpose