Grier v. Strother

111 Mo. App. 386 | Mo. Ct. App. | 1905

BLAND, P. J.

(after stating the facts). — Appellant assigns as error the giving of the following instruction for the plaintiff:

“1. The court instructs the jury that if you believe and find from the evidence that the plaintiff, H. P. Grier, and the defendant, Jeff. D. Strother, and one 0. G. Shepard, on the-day of June, 1893, formed a copartnership for the purpose of manufacturing and dealing in lumber or timber and continued to do so until the-day of December, 1899, and that each of said partners were by their contract to share the profits and losses of said partnership, and during the continuance of said partnership which was so formed by these parties, said copartners made and realized any amount of profit. ■ And should you further find that the copartnership of 0. G. Shepard & Co. received said profits and appropriated the same to their own use, and that the defendant, Jeff D. Strother, constituted one of said firm of 0. G. Shepard & Cop then and in that event you should find for the plaintiff in such sum as the proof shows he is entitled to.”

There are two objections to this instruction, first, there is no substantial evidence that the mill company made any profits. Plaintiff showed that he did not keep any account of the mill company’s business and had no definite idea as to whether the company made or lost money and that he was in total ignorance of the income and expenses of the mill. On the other hand, Shepard, who testified he kept the mill accounts, said that the mill company lost money from the start and continued to lose m,oney as long as it was in operation and that it was indebted to Shepard & Company for about two thousand dollars; second, the instruction is erroneous, in that it utterly ignores the counterclaim, although it was supported by the evidence of both Shepard and Strother. The individual indebtedness of plaintiff to Shepard & Co>. was pleadable as an offset against plaintiff’s demands against the firm of Shepard & Co. and this offset could not be cut out or dismissed by the dismissal of the suit as to Shepard and-proceeding against Strother alone, and the learned trial judge very properly instructed the jury for defendant, that it should find for the defendant on his counterclaim, if the evidence proved it. But the jury followed the instuction for plaintiff, in which it was authorized to, and did, entirely ignore the counterclaim. Appellant assigns here for the first time as error, .the failure of the jury to make any finding, on the counterclaim. This objection to the regularity of the verdict comes too late. It should have been made at the trial when the verdict was returned and, if not then corrected, the attention of the court should have been called to it by motion in arrest of judgment. This was not done. Saddlery Co. v. Bullock, 86 Mo. App. l. c. 93; Henderson v. Davis, 74 Mo. App. 1; Ring v. Paint & Glass Co., 44 Mo. App. 111.

As the judgment must be reversed and the cause remanded for new trial, we think it well to suggest to the trial court and to the parties- that, in our opinion, the procedure, according to the rules of equity, is much better adapted to a full and fair investigation of the matters in dispute between the parties than is the procedure at law. The cause should be tried for what it is. The pleadings are somewhat defective and leave to amend them should be granted, if the parties are so advised.

.The judgment is reversed and the cause remanded.

All concur.