144 Mo. App. 61 | Mo. Ct. App. | 1910
This action was begun November 6,1906, in the probate court of Buchanan county, by the filing of a demand of $1582.43, in favor of the Fullerton Lumber Company, a corporation, and against the estate of Joseph Massard, deceased. The demand was an open account for lumber and materials sold by plaintiff to Massard between January 3, 1901, and July 24, 1905, and the account contained several hundred debit and credit items. Plaintiff was allowed $1497.43 on the. demand by the probate court and defendant appealed to the circuit court. On motion of plaintiff and over the objection of defendant, the.cause was referred to a referee “to hear the evidence and make findings of fact and conclusions of law and to report the same to this court,” etc. After the cause was referred, and before the referee filed his report, plaintiff filed an amended petition in which, for the first time, the attempt was made to divide the running account into two separate and distinct causes of action. The first of these alleged causes embraced the items of the account between the dates of January 3, 1901, and July 8, 1903, and on these items, plaintiff demanded the sum of $921.92 against the estate. The second cause was founded on the items from July 8, 1903, to July 24, 1905, and judgment for $660.46 was prayed on that account. These two causes -are made the subject of separate counts and the reason plaintiff gives for the separation of the account into two causes is that plaintiff was a copartnership prior to July 8,1903, and after that date, transacted business as a corporation. It is alleged that the indebtédness due the partnership was sold and assigned to the corporation July 8, 1903.
The principal defense is found in the following paragraph of the answer: “Defendant states that before the filing of this cause against the defendant, the plaintiff had instituted suit in probate court against the defendant and had recovered from the defendant its account or demand against the estate of Joseph M'.
It is conceded that on June 12, 1905, plaintiff filed a demand in the probate court for $295.40 against the defendant estate and that this demand consisted of a part of the present account. Plaintiff was allowed the full amount of that demand before the institution of the present action.
In two ways plaintiff attempts to parry the defense of a splitting of the cause of action: First, counsel say that the account on which judgment was rendered by the probate court for $295.40 contained only items for sales of lumber and material made by the corporation after July 8, 1903, and, therefore, that the judgment could not affect the cause of action in the first count which had accrued to the partnership before that date; and, second, that it could not defeat the second count for the reason that the splitting of that cause of action was done by plaintiff at the specific request of defendant. In the report of the referee these contentions of plaintiff are approvingly recognized, both in the findings of fact and conclusions of law, but the difficulty with plaintiff’s position before us is that the trial court sustained the exceptions of defendant to that report; set it aside in toto and, on the evidence, made new findings of fact and conclusions of law which give plaintiff no ground on which to predicate either contention and which, in the condition of the record in respect of the facts, compel us to accept the court’s findings of fact as conclusive. Plaintiff failed to preserve.
It is held in Utley v. Hill: “It was hence entirely competent for the trial court, in the case at bar, to set aside the finding of the referee in favor of plaintiff, and then to find for the defendants upon the evidence reported by the referee. This is the true rule; for while this court, on appeal, has always treated the report of a referee as a special verdict, and refused to disturb it if there was substantial evidence to support it (Berthold v. O’Hara, 121 Mo. 1. c. 97), still the power of the circuit court is very different; for in such cases, a jury being waived, the case is triable before the court, and because the court has not the time to try such cases it calls in the aid of a referee to take the testimony. The referee’s power is limited to recommending a judgment. The duty and responsibility as to the judgment rests upon the court. The referee can aid, but not bind, the judge. And, with all the evidence before the court, it would be a useless and expensive proceeding to refer the case to the same or another referee; for, perchance, the referee would find the facts the same way again, and so the expensive luxury would have to be repeated, until some referee could be found who would find the facts as the judge all the while believed they should be found, and as he could and should have found them upon the coming in of the first report.”
It is apparent the attempted separation of the account into two causes of action was a maneuver to escape the defense of res ad judicata. The judgment is affirmed.