274 Mo. 414 | Mo. | 1918
Lead Opinion
Plaintiff, a contractor and builder, sues the defendant in quantum meruit, for the reasonable value of labor and materials furnished in the construction of a three-story brick building in the city, of St. Louis. The petition states a simple action in quantum meruit. In the petition is a full itemized statement of account between the parties, showing the items of labor and materials furnished, and the payments made to plaintiff by the defendant. Such petition asks judgment for the balance of $12,920.68, with
To this petition the defendant filed answer and counterclaim. The answer' is (1) a general denial, with which is coupled an admission that defendant did contract with plaintiff to furnish the labor and material for its building and that plaintiff did certain work thereupon, and (2)- a plea of payment. These two portions of the answer are in fact a general denial and a plea of payment.
The defendant then pleads a written contract with ' plaintiff, detailing with particularity many of the provisions thereof. The answer then avers that the plaintiff breached the contract (stating particulars) and that by reason of the breach of the contract by plaintiff the defendant had been damaged in the sum of $5908, for which defendant asked judgment against plaintiff. With the exception of (1) the general denial and (2) the.plea of payment, supra, each paragraph of the answer is bottomed upon a breach of the contract by plaintiff. ,
The reply admitted the execution of the written •contract, and admitted that the terms thereof were as pleaded by defendant, but averred that 'defendant had breached the contract. The particulars of both answer and reply can be best dealt with in the course of the opinion. This outline suffices to show the character of the issues.
The trial court sent the case to a referee who took the testimony, made findings upon the issues of fact, and recommended that judgment go for the plaintiff in the sum of $7442.75, with interest at six per cent from June 1, 19DL1. Upon a review of the referee’s findings, the court concluded that the referee had erred in two instances — one in the sum of $200 and another in the sum of $1425.14 — and such court deducted these sums from the amount of the judgment recommended
The court also entered judgment against the defendant on the counterclaim, so that the defendant not only lost its counterclaim for $5908, hut lost its claim of payment, and had a judgment against it for over $6000, including the interest. These details we give to show our jurisdiction on this, the defendant’s appeal.
Reference: Long Account Law Action or Equity Suit: Review of Statutes.
I. Every issue in this case is an issue at law and not in equity. It is true that there is a long account involved, such as would make the ease one for compulsory reférence, and the case was properly referred. The parties did not object to the reference, bnt objections would have been unavailing, because as said, the character of the account is such as authorized a compulsory reference.
It has been urged that long and intricate accounts are subjects of equity cognizance, and that cases to that effect may be found I have no doubt. But the question is, how have long and intricate accounts, in cases otherwise purely cases at law, been recognized in this State? Have long and intricate accounts been classed in equity or at law? We say at law, and not in equity.
To start with, it required no statute to authorize a reference in- equity. This was one of the powers of a court of equity, and such courts had the power to either appoint a master for a term, or a special master in the particular case. [16 Cyc. 429 et seq.] If the mere fact of there being a long and intricate account involved threw the case in equity, then the chancery courts could have the accounting taken before their master or commissioner, and no reference- statute was necessary in such case. Our law-makers did not so view the matter. From the earliest legislation down
In this case able counsel for appellant asks us to review the rule announced in St. Louis to use v. Parker-Washington Co., 271 Mo. 229. It might be well to restate that rule before tracing the history and development of our reference statutes. The Parker-Washington Company case simply holds that in a case of compulsory reference, where the issues involved are issues purely at law, and where the trial court has approved the findings of fact made by the referee, such findings, so approved, will not be disturbed by this court, if there is substantial evidence to support such findings. In other words, that this court, in such' case, will not review the evidence to determine its weight, but will only review the evidence to determine the fact as to whether or not there is substantial evidence to support the findings. Such findings in such a case stand here upon the same plane as the verdict of a jury in a law case, or as the findings of a court in a law case where no jury has been called. Such is the rule of the Parker-Washington Company case, and such rule is fully sustained by the history of our reference laws, as well as by the well considered case law of the State.
It has been suggested that our original statute as to references is found in the Laws of 1848-9 at page 91. To this I do not agree. Long before that we had reference statutes, and long before that, long accounts, in eases that were otherwise cases at law, were placed
In Laws of Missouri of 1825, vol. 2, it will he seen that we had two Practice Acts. Prom page 620 to 636 of said Volume 2 is the Practice Act for cases at law. It is made up of two chapters and is headed, “Practice At Law.” Following this, at pages 636 to 648, is the law governing practice in chancery cases. This is a single act of fifty sections, and is entitled, “Practice in Chancery.” These two separate Practice Acts continued until the Act of 1848-9. Now, hearing in mind the two distinct acts, one for law matters and one for chancery matters, let us trace the real origin of our reference law. Section 35 of Chapter 2 of the Act entitled “Practice at Law,” Laws of Missouri (1825), vol. 2, p. 630, is ,a reference statute. It provides that “if .neither party requires a jury, the law and the facts may be determined by the court, or the court may refer such cause to three or more indifferent and competent persons, whose report, if approved by the court, shall have the same effect as a verdict by a jury.” This was our first reference - statute. 'Note the force and effect given to the report of the referees, when approved by the court — “the same effect as a verdict by a jury.” Such was the holding in St. Louis v. Parker-Washington Co., 271 Mo. l. c. 241.
But further, in Laws of Missouri (1825), yol. 1 p. 138, under the head of “Arbitrations,” we have in Section 4 of that act a reference statute pure and simple. This section provides for a consent reference; whereas, Section 35, p. 630, vol. 2, Laws of Missouri, was not a consent reference. Under this Section 35, if the parties waived a jury, the case was triable by the court or by a referee at the option of the court, and not the option or consent of the parties. ' In other words, once a jury waived, the reference was compulsory, and the findings of the referee, when approved by the court, stood as the verdict of a jury. Thus the origin of references in Missouri, and they had their
Now, when we reach the Statutes of 1835, the matter is made more explicit. In the Missouri Statutes of 1835, the circuit courts, by express provisions of Constitution and law, exercised both law and equity jurisdiction. [R. S. 1835, p. 32 and page 155.] In equity they proceeded according to the rules, usages and practice of courts of equity. Then there was a distinct’ act of six chapters governing the “Practice in Chancery.” [See R. S. 1835, pp. 506 to 517.] In the Statutes of 1835, at page 450, will be found the Practice Act (in seven chapters) governing courts of law. It is entitled, “Practice at Law.” Section 15 of Article 4 of this Act (R. S. 1835, p. 463) reads:
“All issues of fact joined in any suit, in any court of record, shall be tried either by the court, by a jury, or by referees:
“First, The trial shall be by the court, when neither party shall demand a trial by jury, and the cause is not referred.
“Second, It shall be by jury, when either party shall demand such trial and the cause is not referred.
“Third, It shall be by referees, when the court is authorized to refer the trial, and shall have referred it'‘accordingly. ’ ’
This provision has reference to actions at law, pure and simple. Now, when we turn to Section 17 of article 5 of the same laws (R. S. 1835, p. 467.) we will see just when the case may be referred. This Section 17 reads:
“"Whenever an action shall be at issue in any court of record, such court may with the consent of the parties thereto, in its discretion, order such cause to be referred to one or three impartial and competent men; and when it shall appear to the court, that the trial of*427 such action will require the examination of a long account on either side, such court mag, without such consent¡ make the same order of reference
Here we have the consent reference and the compulsory reference, just as we had in Statutes of 1825> hut in one section rather than in two. Here we have long accounts as the basis of a compulsory reference, hut it must he borne in mind that it is long accounts in law actions and not in cases in equity. So far references are purely in law cases, and a referee an arm of a court at law and not a court of equity.
By Section 17, supra, we have the authority for an order of reference. The proceedings of the referee will he found on page 74 of Statutes of 1835. Section 26 on that page says: “The referees appointed in pursuance of any order of reference, shall proceed, with diligence, to hear and determine the matter in controversy.” Other sections provide how they shall proceed, and finally Section 32 (p. 74, Statutes of 1835) fixes the force and effect of the findings in this language: “If the report of the referees he confirmed by the court, judgment shall be rendered thereon, in the same manner, and with1 like effect, as upon the verdict of a jury. ’’
Is there any resemblance heré to the rule in Parker-Washington Company case?
But let us get the distinction clear. Up to this time in our legal history referees are referred to only in eases at law. In the chancery court we had a commissioner, not a referee. [Statutes of 1835, p. 512.: Statutes of 1825, vol. 2, p. 641, sec. 28.] Throughout the two were separate. In equity, commissioners; at law, referees. Long and intricate accounts are placed under the head of law actions and not chancery actions.
Passing now to the Statutes of 1845, let us see the status. -Here we have two Practice Acts, as in 1825 and 1835. “Practice in Chancery,” an act of six chapters, Statutes of 1845, pp. 835 to 853, and “Practice at Law,” an act of seven chapters, pp. 804 to 835'. Under “Practice in Chancery,” the court appointed
“When it shall appear to the court, that the trial of such action will require the examination of a long account on either side, such court may, without such consent, make the-same order of reference.”
Then under Section 20 of Article 4, “Practice at Law” act, Statutes of 1845, p. 819, we have this:
“All issues of fact joined in any suit, in any court of record, shall he tried, either hy the court, hy a jury, or hy referees: First, The trial shall he hy the court, when neither party shall demand a trial hy jury, and the cause is not referred; Second, It'shall he hy jury, when either party shall demand such, trial, and the cause is not referred; Third, It shall he hy referees, when the court is authorized to refer the trial, and shall have referred it accordingly.”
Then, as in 1835, we have a section of law prescribing the duties and procedure of referees. Thus Section 27, p. 126, Statute of 1845, reads:
“The referees appointed in pursuance of any order of reference, shall proceed with diligence to hear and determine the matter in controversy.”
Then, hy Section 33, on said page 126, supra, we have the force of their findings, thus:
“If the report of the referees h.e confirmed hy the court, judgment shall he rendered thereon, in the same manner and with like effect, as upon a verdict of a jury.”
So throughout references have been arms of courts at law, and not of courts in equity. Throughout their findings have been as verdicts of juries, and throughout long accounts have been the subjects of references in courts of law. And throughout there has thus far been
Bnt we are cited to tbe Act of 1848-9, p. 91, as antbority for tbe position, that a long account wbicb is referred tabes tbe cause into equity ratber than at law, as it bad gone prior to this act. By this Act of| 1848-9 (Laws 1848-9, p. 73) we reformed our practice acts. Distinctions between law and equity were abolished, and provision made for “but one form of action for tbe enforcement or protection of private rights, and tbe redress or prevention of private wrongs, which' shall be denominated a civil action.” We fully understand this act. But it is hardly necessary to say (in view of repeated rulings) that under this act if tbe things stated in tbe petition were of tbe kind theretofore beard by courts of law, such petition would be beard on tbe law side of tbe court and, as a case at law. On tbe other band, if tbe petition counted in what bad theretofore been cognizable in chancery, such petition would be beard on tbe equity side of tbe court, and’ as a cause in chancery. In other words, this act did not make what was theretofore cognizable in law cognizable in equity, or vice versa. We have seen that long accounts were theretofore cognizable in law and not in equity. In other words, beard before a referee, tbe arm of a court at law, and not before a commissioner, tbe arm of a chancery court. ’ Don’t understand me to say that a commissioner in chancery could not take an accounting, for be could, if tbe cause was for other grounds in chancery. What I do mean is that in this State a very long or intricate account did not place a case in chancery on that ground alone, but on tbe contrary tbe law provided a referee, an arm of a court at law, to take such an accounting.
Section 5 of Article 16 of tbe Practice Act of 1848-9, p. 91, is urged as authority for tbe claim that tbe cause was transferred to equity, but this overlooks Section 4 just above it, wbicb specifically authorizes tbe appointment of a referee. When it is considered that
Passing now from the Statutes of 1845 to the Statutes of 1855, and passing in dignified and quiet respect over the dead and mouldering body of the said Section 5, p. 91, Laws of 1848-9, let’s see the continued status of the law as to the referees. Section 12 of Article 10, Statutes of 1855', vol. 2, p. 1261, reads:
“An issue of fact in an action for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless a jury trial b.e waived, or a reference ordered, as hereinafter provided.
Note the fact that these are all actions at law. The “hereinafter provided” is found in Sections 17, 18 and 19, following. Section 17 refers to reference by consent. Section 18, so far as pertinent, reads:
“Where the parties,do not so consent, the court may, üpon the application of either, or of its own motion, direct a reference in the following cases: First, Where the trial of an issue of fact shall require the examination of a long account on either side, in which case the referees may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein.”
We have above the character of cases in which the reference may be ordered. They are cases at law-and cases with long accounts. Now as to the effect of the findings we have to turn to another statute, which deals with the subject.
Section 27 of Chapter 7 (Statutes of 1855, vol. I, p. 199) reads: “The referee or referees, appointed in
Section 42 of the same chapter reads: “If exceptions are allowed, the matter may again he referred, with instructions, if necessary; hut, if the report is confirmed by the court, judgment shall be rendered thereon, in the same manner and with like effect as upon a special verdict.”
These laws remained intact in the General Statutes of 1865. [Vide Sections 12, 17, 18 and 19, Chapter 169, General Statutes 1865, pp. 673 and 674.]
So, too, Section 27, Chapter 198, General Statutes of 1865, p. 773, provides that the referees shall proceed with diligence; and Section 42 on page 775 provides:
“If exceptions are allowed, the matter may be again referred, with instructions, if necessary; but, if the report is confirmed by the court, judgment shall be rendered thereon, in the same manner and with like effect as upon a\ special verdict.”
Going now to the Revised Statutes of 18791 (which are after the adoption of our present Constitution), we find Section 3600, which reads as follows:
“An issue of fact in an action for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless a jury trial be waived, or a reference ordered, as hereinafter provided.”
Note the trial shall be by jury, unless it be waived, or unless a reference is ordered “as hereinafter provided.” This “hereinafter provided” is found in Sections 3605 and 3606, following. They read:
“Sec. 3605. All or any of the issues of fact in the action may be referred, upon the written consent of the parties.
“Sec. 3606. Where the parties do not so consent, the court may, upon the application of either, or of its own motion, direct a reference in the following cases: First, where the trial of an issue of fact shall require the examination of a long account on either side, in*432 which case the referees may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein.”
There is no common construction which would allow us to say that the phrase “or a reference ordered, as hereinafter provided” has reference to Section 3605 only. It clearly refers to both sections, 3605 and 3606. The law starts out with pure law cases in Section 3600, and the reference referred to is specifically in such cases. The next section (Sec. 3601) refers to equity cases, and it says the issues in such cases may be tried by the court, or the court “may refer it, as hereinafter provided.” So that both law and equity eases may be referred “as hereinafter provided.” That is to say, they may be referred by consent, or they may be referred (in proper conditions) by compulsion.
Section 3623, Revised Statutes of 1879, reads:
“If exceptions are allowed, the matter may again be referred, with instructions, if necessary; but' if the report is confirmed by the court, judgment shall be rendered thereon, in the same manner and with like effect as upon a special verdict
A special verdict is defined by statute. [Sec. 1988, R. S. 1909i.] It has likewise been construed by this court. [Shipp v. Snyder, 121 Mo. l. c. 161.] A reading of these may obviate some loose thought, recently expressed in this case.
These several sections, supra, run through all of our statutes down to 1909. They are in exactly the same terms. Section 3600 of the Revised Statutes of 1879 is Section 1968 of the Revised Statutes of 1909; Section 3601 of 1879 is Section 1969 of 1909 ; Section 3605 of 1879 is Section 1996 of 1909; Section 3606 of 1879 is Section 1996 of 1909; and Section 3623 of 1879 is Section 2013 of 1909.
The trouble with our case law is that we have tried, in some eases, and without either rhyme or reason, to limit the phrase “or a reference ordered as hereinafter provided” in Section 1968, Revised Statutes 1909, to
Throughout, long and intricate accounts in law cases have been made the subjects of reference, rather than a jury trial; throughout, accounts of this character have not been, by our statutes, recognized as equitable, or as the means of throwing cases into equity. Throughout, the findings of the referee, if approved by the court, has had the effect of a special verdict.
When the divers sections are read together (R. S. 1909, secs. 1968, 1969, 1995, 19(16 and 2013) it cannot be said that it is only in consent references that the findings of the' referee, when approved by the court, shall have the effect of a special verdict. Said Section 2013 has in view all references.
It is true that there is a footnote on page 199, Revised Statutes 1855, which says that the reference statutes in the Statutes of 1855,• on said page 199 and following, were taken from article 4 of. the Chancery Code of 1845, and we are cited to this footnote for authority. Writers of footnotes are not always accurate, and this footnote is not sustained by the facts. We bespeak a careful examination of the facts. To begin with, Article 4 of the Chancery Code of 1845 (R. S. 1845, p. 845) had but fourteen short sections, all relative to commissioners in chancery, whilst the reference laws of 1855 (Revised Statutes 1855; p. 199', et seq.) has twenty elaborate sections, some of them quite elaborate, thus showing a re-writing of the law — in other words a new statute. But this is. not all. We shall point to the places from which most of the sections of the Statutes of 1855 came. Turning to page 199 of Revised Statutes 1855, under the head of “References” the first section is 27 and we find this section an exact rescript of’ Section 27, Chapter 9, Revised Statutes of
Section 30, page 199, Revised Statutes of 1855, is an exact rescript of Section 29, Chapter 9', Revised Statutes of 1845, page 126. Section 31, page 199, Revised Statutes of 1855, is a practical rescript of Section 28, Revised Statutes of 1845, page 126. Section 32, page 199, Revised Statutes of 1855, comes from Section 30, p. 126', and Section 4, p. 122, of Revised Statutes of 1845, and not from the Chancery Act of 1845. Section 33, p. 200, Revised Statutes of 1855 (pertaining to the using of depositions before referees) is a new section in the reference law. There was a section of similar import in the Chancery Act, but not in the same language. Section 34, page 200, Revised Statutes of 1855, is practically a rescript of Section 31, Chapter 9, page 126, Revised Statutes of 1845. Section 35-, page 200', Revised Statutes of 1855, is an exact rescript of Section 32, Chapter 9, page 126, Revised Statutes of 1845. Section 36', page 200, Revised Statutes of 1855, is a new section, and is in neither the previous Reference Statutes, nor the Chancery Practice. So likewise are Sections 37 and 38. Section 39, page 200, Revised Statutes 1855, is taken from the Chancery Practice of 1845, and is a rescript of Section 9 of Article 4 of that act, substituting the words “referees” for “commissioners.” The section relates only to the saving of exceptions to the competency of witnesses. Section 40, page 201, Revised Statutes of 1855-, is new. Section 41, page 201, Revised Statutes of 1855 (pertaining to time when exceptions to report of referees shall be filed), is a practical rescript of Section 11, Article 4, of the Chancery Act of 1845, substituting the word “referees” for “commissioners.” Section 42, page 201 of 1855, is a practical rescript of Section 33, Chapter 9,
In all other cases at law, tried before a court, without the intervention of a jury, we say that we will not weigh the evidence to determine the correctness of the court’s findings of fact. Such findings of fact, like verdicts of a jury, are binding here, if supported by substantial evidence. Why shouldn’t such rule prevail in law cases, wherein a reference is compelled by reason of a long account? The history of reference statutes, and their sundry provisions, sustain the views expressed in the Parker-Washington Company case, supra. Sound reason is with the rule • announced in that case, and the well considered case law of this and other states sustain it.
In the case at bar there is substantial evidence (and more) to sustain every finding of fact approved
II. That the mere fact of there being a long and intricate account in an action, otherwise purely an action at law, does not make such case a cause in equity, is not only established by the history of the ^aw reference, as above detailed, but it has been so recognized by this court. This recognition has been in cases where the constitutionality of the compulsory reference law has been attacked..
We have held this compulsory reference statute as not violative of the Constitution of 1875, and not on the ground that a long and intricate account threw the case into equity, but on the ground that our Constitution only guarantees the right to trial by a jury “as heretofore enjoyed.” We hold that long before the adoption of the Constitution there was no right to a trial by jury in law eases involving long and intricate accounts, and for this reason the Constitution was not violated by our compulsory reference statute. [Wentzville Tobacco Co. v. Walker, 123 Mo. 662; Ice Co. v. Tamm, 138 Mo. 385; Tinsley v. Kemery, 170 Mo. 310.] These cases cite and discuss a great number of cases. The effect of all is that • a long and intricate account does not change an otherwise law case into an equity case, but that such cases still remain cases at law, and a trial by jury cannot be had therein by the mandate of the Constitution, because such cases had not been tried by jury prior to the adoption of the Constitution. So that with the doctrine of the Parker-Washington Company case, and the cases therein cited, we are still satisfied. And why not? Why say if a court tries a negligence case, or any other case at law, and finds a judgment in the sum of $10,000 and that case comes here upon, appeal, we cannot disturb the findings of fact, and yet say in a reference, in a pure law action, we
Nor is there substance in the contention that long accounts in law actions prior to the Constitution of 1875, should have been heard before a jury under the prior constitutions, and therefore under the Constitution of 1875 they should now he so heard. In 1851, in Shepard v. Bank, 15 Mo. l. c. 150, the validity of the compulsory reference statute was challenged on constitutional grounds. It was urged that it trenched upon the constitutional right to trial by jury. This court upheld the statute. So that for years prior to the adoption of the present Constitution no trial by jury in law cases involving long accounts had been permitted or enjoyed. This under the express ruling of this court in Shepard’s case, supra. Our present Constitution only gives the right to trial by jury “as heretofore enjoyed.” The right to a jury in law cases involving long ccounts had not been “heretofore enjoyed” when our present Constitution was adopted, and hence trial by jury in such cases was not preserved in this Constitution.
For the sake of the argument we might admit that this court was wrong in Shepard’s case, and that law cases having long accounts should have been triable before a jury and not a referee. But they were not so tried. Whether rightfully or wrongfully makes no difference. Our present Constitution only guarantees the right to jury trials where such right had been theretofore enjoyed. In law cases with long accounts, both by statutes and the ruling of this court, the right to trial by jury had been denied in such cases, and no such
But as neither party demanded a jury or objected to the reference made, this question is not in this case. '
III. But even if we concede that it is the duty of this court to weigh- the evidence, the evidence when weighed shows that defendant breached the contract, and practically the whole answer falls to the ground. I shall now proceed on the theory that it is our duty to review the evidence and make our findings. As to who breached the contract is a pivotal question in this case, because upon it depends the applicable law. The referee found that the defendant had breached the contract, and, of course, applied the law applicable-to such case. It stands without contradiction that the defendant refused to pay $9000' due on June 1st. It is urged that there is no evidence of the fraudulent conduct of tbe architect, and there is quoted a line or two from the referee’s report, but not a syllable from the evidence. That the real facts of this case may appear I am glad to go to the record, for they show overwhelmingly that both in character of material and quality off work plaintiff was living up to his contract, unless it be as to the character of the cement used under the following two clauses of the specifications: “The-fire walls to be covered with wall coping laid in Portland Cement,” and “Last five courses of chimneys to be laid in Portland Cement mortar.” These the subcontractor under plaintiff offered to make good prior to defendant’s refusal to pay. But we are adrift from the thought in mind at the beginning of this paragraph. That thought was, who breached the contract?
In answering this question we shall not deal in glittering generalities, but in plain record facts. Article 9 of the contract, page 107 of the record, furnished by appellant, reads:
*439 ■ “It is hereby mutually agreed between the parties hereto that the sum to he paid by the owner to the contractor for said work and materials shall be $31,607, subject to additions and deductions as hereinbefore provided, and that such sum shall be paid by the owners to the contractor, in current funds, and only upon certificates of the architect, as follows, as per clause 21, page 7, of the specifications.”
Now turning to the specifications referred to in article-9 of the contract, we find that it reads:
“21. 'Payments shall be made monthly (unless otherwise provided) for eighty-five per cent of all work and materials in place.
“Estimates for said work shall be approved by the architects from estimates submitted by the' sub-contractors. TJpon final completion and acceptance of the work all unpaid balances shall be liquidated within ten days.”
As evidence of the fact that defective work or material was not to preclude these partial payments, we find paragraph 22 of the specifications reads:
“Monthly or partial payments, except the final payment, are not to be construed as conclusive evidence of the satisfactory performance of this work, either wholly or in part, and that no payment shall be considered or regarded as an acceptance of defective work or improper materials.”
The referee makes this finding, that is of value here:
“The defendant relies upon that provision of the contract making the architect the final judge on disputed questions arising during the progress of the building.
“Mr. Powers, the architect, testified very frankly when asked his reason for not issuing his .certificate on the May estimate, as follows:
“Q. Didn’t you tell Mr. Johnston (the contractor) that before you would issue a certificate you would have to talk with Mr. Dowling (the owner) ? A. I make it a rule .-always to do that, Mr. Taylor.
“Q. Didn’t you tell Mr. Johnston that you thought •it was your duty to issue the certificate? Did you say*440 that to Johnston? A. It was my duty to issue it under the contract with this building.
' “Q. Didn’t you tell him it was your duty to issue the certificate at that time; that you wanted to do it? A. It was my duty under the contract to issue a certificate; whether- I told him that at that time I don’t know, hut it was my duty under the contract to issue the certificate.
“Q. For the work done during the month of May? A. Tes, sir.
“Q. You told Johnston that fact, didn’t you? A. No, I didn’t tell Mr. Johnston that fact; I don’t know that I did. It was my duty to issue it, wholly without regard to what I told him.
“Q. Didn’t you tell him you would issue it, hut that Mr. Dowling forbade you doing so? A. It might have been.
“Q. Don’t you know? A. I don’t know whether I did or not. If I told him that, it was because I thought it wouldn’t he paid; when I issue a certificate, I want to know it is all right, and going to he paid, before ” I let it go out of my office.
“Q. Mr. Dowling told you not to issue it, didn’t he? Yes, or no. A. No, I think Mr. Dowling told me that he yrouldn’t pay it.
“Q. Didn’t he tell you that you shouldn’t issue it ‘because he would not pay it if you did? A. No, he told me he wouldn’t pay it. Then I said, there is no use of my issuing it.
“Q. That is the reason you didn’t issue it. A. I think that is the final reason.
“The architect testified to the same effect in his deposition on file, pages 29-31.”
The abstract of the evidence made by appellant shows the facts as found by the referee. Vide page 163 appellant’s abstract of record on file here. There it is said:
“The contract provides that eighty-five per cent shall be paid at the beginning of the month. For the work done previous to April, I issued a certificate*441 about April 2nd, for tbe amount less fifteen per cent, and for tbe month of April I issued a certificate, about tbe 4th or 5th of May, which was paid; I did^not issue the certificate which should have been issued about June 1st. It was my duty under the contract to issue the certificate but I refused to do it, because I found it would not be paid. The amount it would have been issued for was approximately $9000. There was no dispute as to the amount. It is correctly stated in my deposition that I started the certificate and asked Dowling if he had the money convenient and that he asked me how much it was and later told me that he had decided not to pay it. I believe I found Mr. Johnston a perfectly straightforward man and' if he was not he would have heard from me.”
But this is not all. The evidence shows that when Mr. Johnston, the plaintiff, presented his • estimate of work for the month of May, two items therein were objected to by the architect, Powers; that thereupon Johnston and Dowling (the president of defendant) met at Powers’s office, and the three went over this estimate, and it was agreed that it should be reduced to $9000, instead of $9221.25, by reducing the plumbing estimate from $475 to $303.75, and insurance from $100 to $50. Vide, appellant’s abstract of record, page 93. This is the testimony of Johnston, which is corroborated by the testimony of Powers, supra. But this is not the only corroboration. The defendant introduced in evidence this estimate of Johnston, which shows just what was done. Defendant’s Exhibit No. 29, and the notes thereon on pages 126 and 127 of the appellant’s abstract of record, read:
“St. Louis, May 31, 1911.
“Mr. H. W. Powers, Architect.
City.
“Dear Sir:
“The following is my estimate for work in place at the Star Bucket & Pump Co.’s building, 1220 N. Fifteenth St.: •
*442 “Excavating .$ 2700.00
Concrete, Masonry & Cut Stone . 2300.00
Iron Work . 2000.00
Brick Work . 5100.00
Lumber . 3000.00
Carpenter Work . 1700.00
Mill Work. 700.00
Plumbing and sewering . 475.00
Sprinkling.1150.00
Steam Heating . 1600.00
Sheet metal work . 100.00
Bond & Permits . 200.00
Liability Insurance . 100.00
$22025.00
“Less 15% . 3303.75
$18721.25
9500.00
“Balance.$9221.25.
“Stenographer’s note:
“The item * Pluming & Sewering, $475.00;” the amount ‘$475.00’ is crossed out, and opposite same in lead pencil appears the amount ‘$303.75.’
“Also, the item ‘Liability Insurance, $100.00;’ the amount ‘100.00’ is crossed out, and above same in lead pencil appears the amount ‘50.00.’
“Also, opposite the footing, ‘$22025.00’ appears in lead pencil the amount ‘21803.75.’
“Also, the balance of ‘$9221.25’ is crossed out, and underneath in lead pencil appears the amount ‘$9000.00.’
“Respectfully submitted,
“P. Gr. JOHNSTON & Co.,
“Per JOHNSTON.”
This corroborates both Powers and Johnston as to the agreement upon $9000 for the May estimate. Dowling in his testimony claims that the agreement was
It is urged that there is no evidence of fraudulent or wrongful conduct, upon the part of this architect, who by the contract was made the arbiter between plaintiff and defendant. Counsel contend, in order to find that plaintiff breached the contract, that the requirements of this arbiter were not met, and cites a number of letters passing between the parties, after the architect refused to issue this certificate due June 1st.
Under the contract it was the duty of Powers- to issue the certificate of indebtedness on June 1st. Under the contract it was the defendant’s duty to pay the same, but through its president it said that it would not pay. Powers, the arbiter, admits it was his duty to issue this certificate, which fixed the then liability, but says he refused because Dowling said that he would not pay it. This-was no small sum, but practically one-third of the contract price. To say that this act of Powers was not tinctured with legal fraud and oppression, is to wipe out of this record the admissions of Piowers, wh'o was a witness for defendant, as well as the practically undisputed other evidence in the case. To illustrate: Suppose a circuit judge were trying a case; suppose, like the arbiter Powers in this matter, such judg¿ had all the facts before him, and then spread of record that “under the facts judgment should go for plaintiff for $1000, but defendant says he will not pay such a judgment, therefore I find for the defendant.” "Would there be any legal fraud couched in that judgment? Does it take a lawyer to conclude that there would be?
In the case at bar, this architect “oí high professional standing and experience,” to use the language of another, on May 31st (note the date and see Dowling’s testimony also for the date) had the parties
Now this agreement as to the amount of the May estimate was on May 31st. The certificate was due to plaintiff on June 1st. It was not issued because Dowling said he would not pay 'it. This was then the breach of the contract by defendant. Paragraph 22 of the specifications, supra, fully protected defendant from all defective material and work, if as a fact there was any such. The weight of the evidence shows that there was not. At least there was no excuse for this refusal to pay.
After this, on June 2nd (Abstract, p. 93), this arbiter suddenly finds that all the brick work on the second and third stories of this b,ig building had not been done with the mortar called for by the contract, and writes a letter demanding that it all be torn down and rebuilt. It is at this point that counsel for defendant starts the case. We start with the refusal to pay. When this record is read there can be no question that the first breach of this contract was by the defendant.
IV. Nor is the above all in this record that tends to show fraudulent and wrongful conduct upon the part of this architect. Of course, he says that Dowling did not tell him to refuse to issue the certificate. Of course,
It would appear that after Dowling told Powers that he would not pay the certificate if issued, and on May 31st, Powers wrote a letter complaining about the mortar used in fire walls, chimneys, stack and pent house, and these changes could have been made for $40 to $50. Part of this the subcontractor offered to do without charge. This was the first step after the architect judicially determined not to issue the certificate because Dowling said that he would not pay it. The big stride was not taken until June 2nd, when the architect suddenly discovers that all the brick walls in the second and third stories of the building had not been placed with mortar in accordance with the contract, and he directed that this be remedied within three days. Don’t forget at this point that this architect had been on this building three to four hours each day whilst these walls were going up. Don’t forget that the men say he saw the mortar mixed, and he does not deny it. On the
So viewing this case as one in chancery, I conclude (1) that the evidence clearly shows a breach of contract by defendant and (2) the fraudulent conduct of the architect.
Y. With the breach of the contract upon defendant’s part practically all of the things pleaded in its answer fall out of the case. Not only so, but the applicable law is thereby changed. If defendant breached the contract he can claim no payments to subcontractors (under his present pleadings), because even in equity we do not go beyond the pleadings for the issues. If the defendant chose to rest his whole defense upon a contract which both he and his architect deliberately breached, he is not in a very presentable shape for a court of conscience. The trial court allowed him some payments which that court
But it is urged that plaintiff on the proof made would be recovering in excess of his contract. Defendant urges that the plaintiff procured the material and labor at a; less price than the proof shows the reasonable value to be, and therefore should not be entitled to more than he paid out, in this action. To illustrate: Ryan contracted the excavation work at $2600, and then did $100 if extra work. He was paid $2700. He testified that the work he did was reasonably worth $3275, and that he lost $500 to $600 on the job. Other testimony is to like effect. This brings us to what is the measure of recovery in cases of this kind. In Missouri we have two classes of eases in quantum meruit growing out of violated building contracts: (1) cases where the contractor has breached his contract, and the owner has taken over and used the material and labor furnished by the contractor, and (2) where the owner has breached the contract, and the plaintiff has elected to sue in quantum meruit- rather than upon the contract.
There has been some loose writing in the Missouri eases as to the measure of recovery in these two classes of cases, but in Division One I have set out what I now assert to be the true rule in a ease where the owner has breached the contract. In the Division case, Bradley Heating Co. v. Sayman Realty and Investment
“Thus in McCullough v. Baker et al., 47 Mo. l. c. 402-3, it is saj.d: ‘The suit is not founded upon the contract. The plaintiff waives that and sues upon the quantum meruit. If he is entitled to recover at all he is entitled to recover a reasonable compensation for the work actually done. That is the rule where the contractor is prevented from completing his job by the unwarranted acts and defaults of the other party. In such a case he is not restricted to a pro rata share of the contract price. He may either sue upon the contract and claim damages for a breach of it, or he may, as in. this case, waive the contract and sue for Jlie reasonable value of his work.’ ~~
“In Ebrlich v. Life Insurance Co., 88 Mo. l. c. 257, Blace:, J., said: ‘So a contractor, who has been prevented from completing his job, may waive the action for damages and sue for the value of the work done and materials furnished, and he is not in such case restricted to a pro rata share of the contract price. [McCullough v. Baker, 47 Mo. 401; Mitchell v. Scott et al., 41 Mich. 108; Fitzgerald v. Allen et al., 128 Mass. 234.] ’
“With a preciseness characteristic of the man, Rombauer, P. J., in Kelly v. Rowane, 33 Mo. App. l. c. 443, thus summarizes the law:
“ ‘The law governing the rights of parties to building contracts in this State, although peculiar, is well settled. If a contractor is prevented by the unauthorized act of the owner from completing a building contract, he may recover in an action the reasonable value of his work and labor, regardless of the contract price, and is not restricted to a pro-rata share of th'e contract price. [McCullough v. Baker, 47 Mo. 401; Ahern v. Boyce, 19 Mo. App. 552.] On the other hand, if he voluntarily abandons the contract, he may recover the actual value of the work and ma*449 terials, not exceeding the contract price, less such damages as have resulted to the other contracting party, from the breach of the contract. [Yeats v. Ballentine, 56 Mo. 530; Eyerman v. Mt. Sinai Cemetery Assn., 61 Mo. 489; Davis v. Brown, 67 Mo. 313.] Under th'e issues made by the informal pleadings of the parties, and the evidence adduced in support, the case in its nature was to be governed by one or the other of these propositions. If the plaintiff was prevented by the unauthorized act of the defendant his contract, his rights and extent of recovery were governed by the first class of cases above cited; if he voluntarily .abandoned it, by the latter.’
“This rule is further recognized to the fullest in Eyerman v. Cemetery Assn., 61 Mo. 489; Davis v. Brown, 67 Mo. 313; Car Co. v. Kast, 171 Mo. App. l. c. 311-12; Cann v. Rector, etc., 111 Mo. App. l. c. 182; Dempsey v. Lawson, 76 Mo. App. l. c. 526; Smith v. Coal Co., 36 Mo. App. l. c. 580.”
That we have cases which say the plaintiff (con-. tractor) who- has not breached his contract, suing in quantum meru-U an owner who has breached his, contract, • cannot recover in' excess of the contract rate, there is no doubt, but to my mind these cases overlook the real distinction. Where the contractor breached the contract, and then sues for material and labor in quantum), meruit, it is proper to limit his recovéry so as to keep the finished structure within the contract price. This, because his breach of the.contract does not destroy the owner’s rights under the contract. By breaching the contract he cannot take from the owner the rights reserved in th'e contract, but the owner in the quantum meruit action can ;a.t least assert the contract to the extent of fixing values and damages. The rule of1 a case where the contractor has breached the contract is well expressed in Eyerman v. Mt. Sinai Cemetery Association, 61 Mo. l. c. 491: “The established rule extracted and deduced from all the cases is, that where a party fails to perform his work according to the stipulations
But in a case where the owner violates or breaches the contract, we universally say the plaintiff can elect to sue in quantum meruit rather than for damages on the contract. If he does so sue, the special contract performs no function in that suit. The defendant cannot undertake to limit the recovery by the terms of the contract, because he has breached the contract. To permit him to use his breached contract to limit a. recovery against him, would be to pay to him a premium for his own wrong. The law does not contemplate' such. The apparent conflict in our cases grow out of an oversight in considering this vital difference between the two classes of quantum meruit actions growing out of breached builders’ contracts. To my mind it is not consonant with good reason to hold that an owner who has breached his contract, can yet use that contract to limit the amount of recovery in a quantum meruit action for labor and material which' he appropriated at the time he breached the contract. These loose expressions in our opinions are not sound law.
In the instant case the plaintiff by plain proof showed the reasonable value of the materials and labor furnished. That this value so shown was greater than plaintiff paid, his sub-contractors does not change the situation. Plaintiff was entitled, in this action in quantum meruit, to the benefits of his bargain. He is only required to show the reasonable value, as such
The findings of the referee and court as to the reasonable value of the materials and labor furnished by plaintiff is sustained by the weight of the evidence, and should be affirmed.
VI. It may be true that defendant after suit was brought did pay some of the sub-contractors, on the theory that he was bound so to do under the contract, or had the right to so do under the contract. But neither this nor the trial court is responsible £°r this situation. Defendant chose to present his case on the theory of a valid subsisting contract, and framed his answer accordingly. "When his theory fell under the proof his contract and all rights thereunder likewise fell. We can’t go beyond pleadings, even in equity. Without an unbreached contract upon his part, the defendant had no right to pay the debts of plaintiff. Such voluntary payments cannot affect this ease under the issues made. Defendant made its bed and must lie in it. The conscience of a chancellor is not pricked by the conduct of defendant and its paid servant, the architect. He who seeks equity must do equity.
The judgment should be affirmed. It is so ordered.
Dissenting Opinion
(dissenting) — I. Plaintiff brings an action in quantum meruit to recover the reasonable value of material and labor furnished in the - construction of a
The account exhibited contains a multitude of items of charge and .a claim of a balance of $12,920.08, due after allowance of credits, for which judgment and a lien to secure the same are prayed.
The defendant answered that it had paid plaintiff for all the materials and labor furnished by hiiu and, further, that under its contract with plaintiff it had the right to retain out of any payment then due, or thereafter to 'become due, an amount sufficient to protect itself against lien claims.
The answer further averred that on the fifth day of June, the plaintiff abandoned said contract and refused to proceed further with the same and ceased all 'work upon said building; that plaintiff was then indebted to certain persons in certain sums for lienable claims; that thereupon, as soon as possible, defendant entered upon said building and caused the same to be completed and in so doing was compelled to expend $2654 in excess of the price at which plaintiff had contracted to construct said building.
The answer closed, to-wit: “Defendant states that by reason of all the facts aforesaid, this defendant has been damaged in the total sum of $5908; for which it prays judgment against plaintiff, together with the costs of suit.”
Plaintiff filed a reply of a general denial and thereupon averred:
“Plaintiff for answer to defendant’s set-off and counterclaim filed therein admits that he executed the written contract of February 21, 1911, mentioned in defendant’s counterclaim. He admits that said contract contained substantially the various stipulations and provisions ,as alleged in said set-off and counterclaim.
“H.e admits that H. W. Powers and defendant jointly executed and caused to be served upon him*453 written notice dated May 31, 1911, containing statements as alleged in said counterclaim.
“He admits that said architect, jointly with defendant, executed and served upon plaintiff written notice dated June 2, 1911, containing assertions substantially as alleged in said counterclaim.
“He admits that on the 8th day of June, 1911, the defendant served a written notice on plaintiff containing substantially the language which said set-off and counterclaim alleges it did contain.”
The reply further averred that defendant had breached the contract' on June 1, 1911, wherefore the architect had no right to audit and certify the cost of finishing the building, and that the architect in giving the notices of May ¿1st and June 2d, as to defective materials, did so because he was dominated by the will of the officers of the defendant.
Hpon the pleadings and issues joined a case for compulsory reference was presented, involving the testimony of fifty witnesses and many hooks of account; whereupon the court appointed George E. Smith, Esquire, to try all the issues of the ease.
II. The nature of this case (compulsory reference) presents a preliminary question as to the correct rule for reviewing the findings of the referee and trial court on the evidence reported, which must be decided before examining the record. This involves a reconsideration of the recent ruling of this court in St. Louis to use v. Parker-Washington Co., 271 Mo. 229, where it was said such a review could not go further than to ascertain if there was any substantial evidence supporting the judgment, of the trial court. That case is the only decision in this State which can he cited in support of the majority opinion. It is my opinion that case should not become a precedent. My reasons are:
First: It is contrary to the line of decisions extending through sixty-nine years.
Second: It is contrary to reason and justice.
The learned majority opinion quotes only half of Section 35 of the Revision of 1825, page 630. The omitted part of the section, as will he seen at a glance, provided for the right of any party to a suit, on proper demand, to have a jury “empanelled for the trial thereof; hut if neither party require a jury, the law and the facts may be determined by the court, or the court may refer such case to three or more indifferent and competent persons, whose report, if approved by the court, shall have the same effect as a verdict by a jury.” If the learned majority opinion had quoted the section entire, it would have been apparent to any one that its contents referred to the rights of a party to a suit, first, where a jury was demanded; second, where a jury was waived, or what is the same thing, where a reference was consented to. The statute shows that without such waiver of a jury, or consent, the court was powerless to refer a case under that section; and that its whole purpose and intendment was to make provision for cases where a jury was required, or where the parties consented to the trial of a case without a jury. It gave the trial court no authority whatever to act in the latter contingency except upon the waiver of, or consent to, a .trial without a jury. It could not have been, therefore, a compulsory reference statute; for its language shows that it provided for a reference only when a jury was waived.
It is self-evident, therefore, that the learned majority opinion was clearly in error when, referring to this section (Sec. 35, p. 630, R. S. 1825), it said “the reference was compulsory;” for on its face it shows it was not compulsory, and that the court could not direct it except upon waiver of or consent to a trial
Neither is the majority opinion correct in stating, as it does, that this statute (enacted February 12, 1826) was the first one providing for reference in this State. That statute, instead of being the first in this State on the subject of reference, was simply a transcript by re-enactment of sections one and two of the Acts of. 1807. [G-eyer’s Digest Mo. Laws, p. 256, secs. 36, 37.] It was adopted before statehood, when this was the Territory of Louisiana, May 7, 1807. [1 Mo. Ter. Laws, ch. 30, entitled “Courts,” seos. 1 and 2, pp. 89, 90.] It was the re-enactment of this section in 1822 which the learned majority opinion incorrectly stated as the time of its beginning. [1 Mo. Ter. Laws, p. 851, see. 42.] The truth is that the first appearance of a compulsory reference in courts of law in this State was nearly twenty years thereafter and was contained in Section 17, page 467, of the Revision of 1835, to-wit:
“Whenever an action shall be at issue in any court of record, such court may, with the consent of the parties thereto, in its discretion, order such cause to be referred to one or three impartial and competent men; and when it shall appear to the court that the trial of such ■action will require the examination of a long account on either side, such court may, without .such consent, make the same order of reference.” .
The learned majority opinion also says that a “very long or intricate account” is not for that reason the subject matter of jiirisdiction in equity because a remedy at law would be inadequate — a statement which is untenable under all the authorities and text-
“Matters of account form a class of cases wherein courts of equity exercise a concurrent jurisdiction with courts of law. Whether this jurisdiction originally arose from the necessity of obtaining a discovery by the oath of the defendant, or in order to prevent a multiplicity of suits, is not definitely known. It is, however, certain that courts of equity began to assume it at a very early period, and that the exercise thereof has been found in practice so convenient and salutary, that it has long since, by general consent, rendered obsolete the common lew remedy by a writ of account which was one of the most ancient forms of action at the common law. In all cases of mutual accounts courts of equity have .for a long time exercised a general jurisdiction on the ground of the inadequacy of the remedy at law . . . But now the jurisdiction extends, not only to cases of an equitable nature, bid to many cases where the form of the account is purely legal. ... In such cases mutuality) of the accounts, of course, adds to the difficulty of accounting, and may give equity for this purpose when the bill would not have equity but for the mutuality; but it is not indispensable to equity jurisdiction for*458 accounting. If th'e accounts be wholly on one side, but, are numerous, complicated and difficult, and extend over a considerable period of time, and involve many transactions, an acounting in equity would be proper.” [10 R. C. L., p. 355, sec. 103-, title “Accounts;” 1 R. C. L., p. 222, sec. 24; 1 Corpus Juris, pp. 614, 615, secs. 2 and 3; Foley v. Hill, 2 H. L. Cas. 28; Fowle v. Lawrason, 5 Peters, 495; Ludlow v. Simond, 2 Caine’s Cas. 1, and sep. opin. by Chancellor Kent; Hagan v. Bank, 182 Mo. l. c. 335, 336.]
The misconception of the established jurisdiction of equity in such cases,, runs through the warp and woof of the majority opinion and leads it into a profitless discussion of the accuracy of a footnote on page 199 of the Revision of 1855, to the effect that the sections of such statute (Sec. 2,7 et seq.). incorporate the provision of Article 4 of Practice in Chancery in th'e Code of 1845. In dealing with this footnote, the majority opinion fails to note that it merely says certain sections of Article 4 are “incorporated in the succeeding sections.” It does not say (as inadvertently stated in the majority opinion) that the entire act set out in the Revision was taken from Article 4 of the Revision of 1845. (It seems, however, from a comparison that 13 of the 14 sections of the Chancery Practice Act of 1845 were ■ substantially incorporated in the Revision of 1855.) But tlie derivation of the various, provisions of the acts of 1855 is wholly unimportant in view of the fact that, like all subsequent revisions, it does embody the exact language of the practice act providing for a reference of “a long account on either side,” as furnishing the only statutory basis in any court to compel a reference in a case like the one at bat. The important thing to be determined in the instant ease is the construction and proper method of review; of this particular clause. Its origin in 1835 has been pointed out and shown to have been but a grant to courts of law of concurrent jurisdiction previously exercised over such matters ■ in courts of chancery by statute to that effect before the importation of the
“We have not overlooked the last clause of Sec. 2865, Stats. 1898, which provides, ‘When the reference is to report the facts the report shall have the effect of a special verdict.’ This clause has existed in the same words and connection ever since the adoption of the Code (Sec. 182, Ch. 120', Laws 1856), and it must be considered as definitely construed by the cases above cited, all of which were decided during the existence of the provision.” [Johnson v. Goult, 106 Wis. l. c. 251.]
Moreover, the section under review is not susceptible of any other rational construction, for it is elemental that though the verdict .of a jury may be set aside by a court of law, yet a law court cannot substitute its own findings of a lesser amount than the verdict of a jury without the consent of both parties to the suit. It must take the verdict as a whole or set it aside as a whole and grant a new trial. This is conceded when such courts (as is sometimes done) order a new trial unless the parties consent to a lesser verdict, for the plain reason that a. common law court cannot substitute its own findings for a lesser amount than was found by the jury, without the consent of both parties. On the other hand, in case of reports of referees in compulsory references, it is admitted (even in the Parker-Washington case, supra) that the trial court has full power to
All that need be said as to the correct decision that a compulsory reference statute is not unconstitutional (Ice Co. v. Tamm, 138 Mo. 385) is, not that it was twenty years older than the Constitution of 1876 (Edwardson v. Garnhart, 56 Mo. l. c. 85); but that the statute simply empowered a court of law to act as a court of equity. As to which said Judge EylaNd :
“Nor do we consider the statute thus authorizing the court to appoint referees, unconstitutional, as trenching upon the trial by jury. It has ever been the practice of the courts, in somewhat kindred cases, to appoint auditors or referees, to settle accounts; nor has the power even been seriously disputed before.”
Judge EylaND was evidently referring to concurrent jurisdiction in courts of chancery to refer accounts to auditors, set forth in Territorial Laws, vol. 1, p. 241, secs. .1 and 10, under title, “Practice in Chancery.” He subsequently added:
“We now have no courts of. equity, nor any equity proceedings, as formerly practiced; all the distinctions*462 between the proceedings of these courts have been destroyed under the force of innovation. -, This action admits of all defenses; the rules of evidence therefore apply in this case, so as to make that a defense here which formerly was considered one in equity.” [Shepard v. Bank of Mo., 15 Mo. 151, et seq.]
The doctrine of this case fully supports the conclusion reached that the statute in question is not unconstitutional, since it is the settled law that none of the guaranties of a right to a jury trial in the constitutions of this State were ever intended to apply in cases within the jurisdiction of a court of equity.
III. Having dealt with the statutes .and the collateral questions contained in the learned majority opinion, it now becomes necessary to consider the vital question, which is whether the Parker-Washington case can be sustained under the unbroken line of decisions in this State, touching the scope of review in compulsory references.
The statute relating to references, both consent and upon compulsion, are now contained in the Revision of 1909 (secs. 1996 to 2013, inclusive) and are the same as to the clause providing a reference against consent for the examination of “a long account on either side,” as in all the prior statutes, running back to the Practice Act and to its origin in 1835. It is, therefore, this identical clause (and not to references, by consent, based on different grounds and governed by a different rule, Implement Co. v. Harvesting Machine Co., 268 Mo. l. c. 368), which must be carried in -mind 'when investigating the decisions in this State applicable to compulsory references.
In determining the rights of the parties in appellate courts in cases of compulsory reference, the rule and practice that the evidence reported to the court by the referee is reviewable both in the trial and appellate courts, were invariable until the recent ruling in St. Louis to use v. Parke.r-Washington Co., supra, as will appear from the decisions of this court and those of the courts of appeals, now to be noted.
That decision was affirmed by the court speaking through Judge Black in an attachment suit where the’ referees reported all the evidence and the rule announced in the following terms: “Under the present statute [identical with the one under review] the constant practice in a large class of cases is for the courts to review the findings of the referee upon the evidence reported by him, and to correct the findings when erroneous. "When the evidence is preserved, these findings may be reviewed and corrected on an appeal to this court” citing cases; but an examination of these cases will show that they either involved an examintion of large accounts, or were suits in equity. The right of the court to correct the findings of fact made by the referee on the evidence reported, must be confined to those cases where the court may, under Section 3606, Revised Statutes [now Sec. 1996, R. S. 19.09], direct a reference without the consent of all the parties, and to suits in equity where there is a reference by consent of all the parties.” (Italics ours.) [Caruth-Byrnes Hdw. Co. v. Walter, 91 Mo. l. c. 488.]
In Wentzville Tobacco Co. v. Walker, 123 Mo. l. c. 671, an action on a bond executed by the plaintiff, it was complained that the obligor had taken credit to himself, without authority, as secretary and treasurer of the plaintiff company, in about forty instances. The case was sent to a referee, who reported, recommending judgment for $1209.69. On "an appeal the books which-formed the basis of the report were not made a part of the record. On account of the absence of this testi
In Small v. Hatch, 151 Mo. l. c. 307, a suit in equity to foreclosure a deed of trust where the defendant prayed an accounting, a reference was ordered. In speaking of which, this court said that notwithstanding the fact that the reference was sought by both parties, it was obviously one which the trial court might have compelled, citing the cases above referred to and thereupon added (GaNtt, P. J.): “This being a reference which the circuit court could review on the evidence reported and render its own judgment thereon, the judgment of the circuit court is likewise reviewable in this court. In such cases while this court ordinarily defers to the judgment of the circuit court, it is settled law that we are not bound to adopt the decree of the circuit court if, upon a re-examination, we are of opinion that it has erred.”
In Williams v. Railroad, 153 Mo. 487, a case where the plaintiff sought to establish a mechanic’s lien, before examining the long account, Gawtt, J., speaking for the court, said: “The reference in this case was by consent of both parties duly entered of record, but it was referable without the consent of either.
Having thus announced the principle governing the consideration of voluminous evidence reported by the referee, Judge Gantt proceeded to determine, by an analysis of the weight and probative force of the testimony, whether or not the trial court had abused its discretion in considering the evidence. For the purpose of solving that question Judge Gautt took up each finding complained of, and considered the relevant evidence, and at the conclusion of an opinion of more than fifty pages, reversed the judgment of the circuit court and remanded the cause with directions to enter a judgment in accordance with the findings made by him on full review of the testimony. [153 Mo. l. c. 495, 511, 519, 548.]
He also announced and applied the same rule in Lack v. Brecht, 166 Mo. l. c. 257.
In State ex rel. v. Reynolds, 245 Mo. 698, the plaintiff sued on a long account involving an amount beyond the jurisdiction of the St. Louis Court of Appeals. The case came here as the result of a prohibition. In disposing of it, Lamm, J., speaking for the court, said that “the original action was at law,” but “that the case belonged to a class subject to compulsory reference.” He then announced upon a full review of the authorities, the rule governing the disposition of. the case, to-wit: “Whatever be the rule in cases that could only be sent to a referee by agreement of parties, yet where a cause in equity is sent to a referee or
That opinion was fully concurred in by every member of the Court in Banc.
The same rule was applied in Vandagrift v. Masonic Home, 242 Mo. l. c. 154, and stated in State ex inf. v. Ark. Lum. Co., 260 Mo. l. c. 274.
This rule was thereafter followed in Division No. One in an opinion (Reed v. Young, 248 Mo. l. c. 613) which explicitly set forth the distinctions as to the power of review in appellate courts in cases non-referable, except by the consent of the parties, and those subject to reference regardless of the wishes of the parties, for the reason that they involved a long and complicated account. That opinion also calls attention to the reason for the distinction in the power of supervision of the two classes of eases and concludes: “And, hence, it has been well decided that the trial and appellate courts have the full right to review the findings of the referee in the instances mentioned in the statute, to-wit, where a long account is to be examined or an account to be taken for the information of the court or where a question of fact collateral to the pleadings arises.” [248 Mo. l. c. 613.] This ease also
The same rule has ' 'been explicitly stated and followed in Division No. Two, in Sonnenfeld v. Rosenthal, 247 Mo. l. c. 250.
In 'a full discussion of the statute under review, the St. Louis Court of Appeals followed the rule of this court In Bane and its two divisions as expressed in the three cases last referred to. [Valleroy v. Enright, 179 Mo. App. 557-8.] And by the Springfield Court of Appeals in Phillips v. Todd, 180 S. W. 1043. To the same effect is Bond v. Finley, 74 Mo. App. l. c. 25.
From 1849 to 1917 the rule and practice of a full review in the trial and appellate courts of the findings of fact in cases of compulsory reference, was applied in every case where the point was in judgment, except the single instance of the ruling in St. Louis to use v. Parker-Washington Co., supra. In that case for the first time it was held, that in a compulsory reference, this court could not further review the findings of a referee or the judgment of the trial court, on the evidence reported, than to see whether there was' any substantial evidence tending to support such findings. In other words, this court could no further weigh the evidence than it could weigh the evidence after a verdict of a jury in cases triable by juries. That view, in my opinion, is as demonstrably erroneous and unsound in principle and reasoning, as it has been shown to be opposed to the practice and procedure and previous decisions of this court, all of which it mutely reverses. It is not supported by a. single decision of the Supreme Court of this State where the point was before the court and held in judgment. Obviously it simply followed the personal view of the learned writer of the opinion adopted by this court in State ex rel. v. People’s Ice Company, 246 Mo. 168. Twice in that casé it was stated that the question as to the proper rule for reviewing such findings of a referee was not decided, since the case
It is perfectly plain that if the remarks of the learned writer of that opinion had been other than an expression of his personal view, the decision would not have been adopted by this Division, of which Lamm, J., was then a member, for it would have been diametrically opposed to what that learned judge had said, with the concurrence of the entire Court in Banc, in a previous volume (State ex rel. v. Reynolds, 245 Mo., supra) to which ruling, it may be added, the'learned writer of the opinion in the Ice case did not advert or make any allusion whatever. He not only expressly refrained from putting his decision on the ground of non-reviewability of the findings of the referee, but referred to no authoritative case in this State in support of his individual views. Indeed, the observation is simply expressive of the mental inclination of the writer of the Ice case and is not even claimed to be supported by any ruling of this court in any case requiring for its decision the application of the rule as to the reviewability of the findings nisi. The only
The first of these cases is Utley v. Hill, 155 Mo. l. c. 276. There a depositor sued the directors of a bank for money lost by its failure. The first count was on the statute making directors responsible for deposits received with knowledge after the bank was insolvent. The second count was an action for deceit. Defendant had judgment after a report by a referee on both counts. The evidence was not preserved on the appeal to this court. Hence the single question was the authority of the trial court to review the report of the referee. It was held that could be done under the authority of Wentzville Tobacco Co. v. Walker, 123 Mo., supra. Nothing else was presented for decision in the ease, but Marshall-, J., expressed his personal view to the effect that this court would have had no right to review the finding of the trial court even if the evidence were properly before it in a case of compulsory reference. It is evident from the facts in judgment that this remark on the part of the learned judge (Marshall) was entirely foreign to the matter which the court was called upon to decide and, therefore, was not in any sense a decision of the question now under review, and this is frankly stated by the learned writer of the opinion in the Ice case; for in referring to that opinion he said: “It is true that the evidence was not before the court and the. point need not have been discussed. The fact that the remark quoted was obiter does not, however, deprive it of all its value.” (Italics ours.) [State ex rel. v. Ice Co., supra, l. c. 202.] In view of this express admission, it cannot be necessary to go further in order to show that the case of Utley v. Hill, supra, on the point held in judgment, was- not a decision of this court supporting the contention that the evidence reported in a compulsory reference is not reviewable on appeal.
It is apparent that Smith v. Baer, supra, did not decide the question mooted in State ex rel. v. Ice Co., and that the dictum of Judge Marshall in that case was entirely off the points presented for judgment, as shown by the quotations from his opinion, and, therefore, furnished no legal or logical support for the dictum in the Ice Case, which seems not to have analyzed the case of Smith v. Baer. Hence the nonjudicial character of Judge MaRshall’s remarks escaped notice.
The case of Caruth-Byrnes Hdw. Co. v. Wolter, supra, seems to have been misapprehended in the Ice » case. That was a legal action commenced by attachment, which the defendant unmailingly sought by an interplea to convert into an equitable proceeding. The case was reversed solely on the ground that the court, denied the right to a jury, which it was directed on a new trial to accord, “unless a jury is waived or new referees agreed upon.” In the course of the decision Judge Black stated with the greatest perspicuity and completeness the rule applicable to compulsory references and also the different rule applicable to other references by consent, holding in the one case that the findings of the referee and the trial court “may be reviewed and corrected on an appeal to this court,”" and in the other (references of legal actions by consent) that there was no review other than that applicable to the verdict of a jury, citing Daly v. Timon, 47 Mo. 516. The decision in that case is authoritative
The case of Williams v. Railroad, 153 Mo. l. c. 511 et seq., is referred to in the Ice case. The ruling and action of the court in that case are evidently misapprehended. As shown in the quotations therefrom heretofore made, Judge GaNTt applied the rule of full reviewability1 and correction on appeal of the findings of a referee to the evidence reported in a compulsory reference. Postulating that principle, he thereupon said the evidence should be examined to discover whether the trial court had abused its discretion in
Judge GaNTt, also, in a succeeding case, announced and applied the same rule of full reviewability and cited Williams v. Railroad, 153 Mo. l. c. 495, in support. [See Lack v. Brecht, 166 Mo. l. c. 257.] It would seem, therefore, that the full import and actual application of the rule stated in Williams v. Railroad was not fully appreciated in the Ice case.
I think this concludes the citations relied upon in the Ice case, except one excerpt from the Court of Appeals which was supposed to give countenance to th'e view of the writer. It is only necessary, as to that, to add that such is not the holding of the St. Louis Court of Appeals, as will appear from the clear, complete statement of the rule by NortoNI, J., in 179 Mo. App., supra.
From this review of the decisions in the Ice case, it is obvious that the undecided dictum in that ease, supported only by a dictum of Judge Marshall in another, affords no basis of support for the ruling made in St. Louis etc. v. Parker-Washington Co. supra.
The only other case cited in the Parker-Washington case is Berthold v. O’Hara, 121 Mo. l. c. 97. That was
IV. Under the pleadings in this case an issue was made as to who, plaintiff or defendant, breached the building contract. My personal view, from an examination of the record, and especially the documentary evidence therein contained, is that plaintiff breached
Quantum Meruit,
Y. A maxim that is of the very essence of equity is, “He who seeks equity must do equity.” Being a foundation stone upon which equity jurisprudence is erected, this maxim is applied independently of the pleadings in the case, whenever the evidence gives occasion. No court proceeding as in equity will permit a judgment in favor of the plaintiff which would deprive the defendant of any equities arising out of the transaction for which a recovery is sought. While I think the answer was broad enough to claim the credits which this maxim would compel, still the defendant is entitled to its application on the proof adduced, whether specifically prayed or not. In the case at bar, defendant was refused credit for the sums of money which it h'ad paid in extinguishment of the liens of sub
On this point it is aptly stated by Sherwood, J., after giving instances of the application of this maxim, viz: “The above are only a few out of a large number of examples which might be cited in illustration of the rule referred to, which finds its application not in questions of pleading, nor by what the plaintiff offers to do therein, but in the form' and frame of the orders and decrees both interlocutory and final, whereby equitable terms are imposed as a condition precedent to equitable relief granted.” (Italics ours.) [Whelan v. Reilly, 61 Mo. l. c. 570 ; affirmed in the same language, Kline v. Vogel, 90 Mo. l. c. 245; affirmed upon a full review of the authorities in Paquin v. Milliken, 163 Mo. l. c. 109; affirmed in principle by Woodson, J., in Baumhoff v. Grueninger, 178 S. W. l. c. 104.]
To demonstrate beyond cavilN that plaintiff is a mere contracting “profiteer” of this inequitable allowance by the referee and the circuit judge, I quote the following from his own testimony on the trial. The attention of the plaintiff was called to what had been paid to him and to what had been disbursed by him to the sub-contractors, leaving a balance in his pocket of $693.77, after which he was asked the following questions and made the following answers:
“Mr. Kinealy: Now Mr. Johnston, is there outstanding on your part any liability unpaid on account of work done by you on this building? A. No, sir.
“Q. Or anybody else on the building? A. No, sir, nothing.
“Q. You are not indebted to anybody?1 A. No, sir.
*482 “Q. And the total amount that you paid out was $8806.23? A. Yes.
“Q. So that on the transaction as it stands to-day, then, you have ho outstanding liabilities on account of this work? A. No, sir.
“Q. And you are $693 cash to the good? A. 1 believe that is right.”
Again the plaintiff’s attention was called to the fact that he claimed $12,920.68 in his present suit; that after he left the work $7089.82 were paid, under written orders of plaintiff, to his sub-contractors, who continued to work for the defendant, wherefore plaintiff’s present claim involved an excess of $5830. After so admitting the plaintiff further stated: “I believe I said yesterday that. if I had gone on and completed the contract I would have realized a profit of $650.” It is thus apparent, out of the mouth of plaintiff himself, who previously admitted that he had $693.75' in his pocket, leaving him without any indebtedness to any person on account of this building, that he had already received more than the profit he would have obtained had he completed his original contract, regardless of any recovery.
The very witnesses for whose work and labor plaintiff got judgment upon an increased valuation, testified they had been paid in full by defendant according to their original contracts. For these actual payments defendant got no credit as against a charge on the increased value put on the work and labor by the men who have been paid in full. This was an inequitable donation. In any view of the extent to which plaintiff might recover on this claim, lie should have been compelled to do equity by crediting on the theoretical value of the work and labor, what had been paid to the suib-contractors. By refusing this credit defendant has been adjudged to pay the sub-contractors according to their respective contracts in full and, again, to pay plaintiff for the same work and labor, the greater sum which the sub-contractors testified it was worth' without any deduction for the payments to them.
Concurrence Opinion
Referenced
(concurring). — I. The majority opinion quotes all of Section 35, Eevised Statutes 1825, vol. 2, p. 630, pertinent to the question under discussion. It goes no further than to say that in case parties entitled to a jury waived it, the case, was then triable by the court or a referee, at the court’s option; not at the option of the parties. The majority opinion holds that to this extent, and only to this extent, a reference, in such circumstances, is compulsory. Such reference was as much compulsory, if ordered, as when ordered in a case involving a long account. In the one instance the presence of the account is the condition precedent to compulsory reference. In the other, under Section 35, supra, the waiver of the jury was the condition which brought the power to refer compulsorily into existence.
Reference statute.
II. Something is said about the Beference Act of 1825 being taken from the Territorial Laws. The majority opinion gives correctly the development and growth of the Eeference Statute from the admission State into the Union until the present time. It is literally correct in the statement that the Eevised Statutes of 1825 contained the first reference statutes of the State. It was the first enacted by the State Legislature.' No point is made or can be made on the source whence they were taken.
III. In an effort to break the force of the clear language of Section 2013, Eevised Statutes 1909, Johnson v. Groult, 106 Wis. l. c. 251, is cited. In State ex
IV. The position taken in the dissenting opinion, that the presence of a long account makes operative the equitable rule of review is contrary to all the decisions. Further, it would wipe out all jurisdiction at law in cases involving such accounts and convict the Legislature of useless legislation in providing for referees in actions at law. The unescapable result of the contention would be that there could be no compulsory reference in an action at law; that no action at law could involve a long account, since the presence of the long account would constitute the case one in equity, ipso facto.
V. An examination of the authorities relied on in this ease to support the contention that this court can weigh the evidence in reviewing a judgment entered following the report of a referee, may not be unprofitable.
At one time in the history of this litigation it was insisted that the Reference Statute in this State
In Borst v. Spelman, 4 N. Y. 284 (1850), the last paragraph of the syllabus reads: “This court cannot review the decision of referees, or the judgment of a subordinate court, where the error is one of fact merely, however clearly the finding may have been against the testimony.” In Livingston v. Radcliff, 2 Comstock, 1. c. 190 (1849), the New York Court of ..Appeals held that only questions of law could be brought up by appeal from judgment on a referee’s report; that the code had not affected, this rule. In Esterly v. Cole, 3 N. Y. 504 (1850), the same court held: “The court of original jurisdiction may set aside a report of referees when it is either against the weight of evidence or without sufficient evidence to support it. But an appellate court has no such power. ... We cannot inquire whether the court below in the one case, or the jury in the other, ]ias drawn the proper conclusions of fact from the evidence.” The Spence-Chambers case was decided in general term of the Supreme (trial) Court, and, therefore, by “the court of original jurisdiction.” It was also decided after some amendments to the statute — amendments we did not “borrow” in 1855. The Court of Appeals of New York prior to our “borrowing” the statute of New York had construed that statute to exclude the very rule announced in the dissenting opinion. Bid we take this construction when we took the statute? Assuming the correctness of the contention as to the source of our statute, the construction given it by the cases cited would hind us. It may be added, however, that it was correctly stated in the case of State ex rel. v. People’s Ice Co., 246 Mo. 168, that the New York statute was, as a whole, so unlike ours that decisions from that State are valueless on the questions now before this court.
Ely v. Ownby, 59 Mo. 437, involved objections to the report of a receiver. There, objections were referred. Comment is unnecessary.
Garuth-Byrnes Hdw. Co. v. Wolter, 91 Mo. 484, dealt with' a reference by consent. It could not possibly have involved the question in this case. Further, the cases it cites in support of the remark relied upon in the dissent"'in this case are Ely v. Ownby, supra; O’Neill v. Capelle, 62 Mo. l. c. 208; and Smith v. Paris, 70 Mo. 615. The first has been mentioned. The second was a suit in equity. The third was also an equitable proceeding (Smith v. Paris, 53 Myo. 274) and the court puts its ruling as to review on the ground that the “circuit court, as the chancellor, might have disregarded the report of the referee entirely,” etc.
In State ex rel. Walker v. Hurlstone, 92 Mo. l. c. 332, 333, the only holding made is that the trial court may review the referee’s findings. The same ruling was the one made in Wentzville Tobacco Co. v. Walker, 123 Mo. l. c. 671. Small v. Hatch, 151 Mo. 300, was in equity. Lack v. Brecht, 166 Mo. l. c. 257, holds that the trial court may review the referee’s findings. The court discussed some exceptions and held them all correct.. As to- the last exception (l. c. 262) Gantt, J., said: “We think the finding of the circuit court and referee that defendant should not be allowed a credit for the furniture bought for the Glasgow Place property was based upon sufficient evidence to sustain that finding, and being on a question of fact, will not be disturbed by this court.”
In discussing Smith v. Baer, 166 Mo. 392, the dissenting opinion seems to overlook a portion of it. The court expressly stated that “it must not foe understood, however, that it is intended by anything that-is said herein, that this court will weigh conflicting evidence in a case of compulsory reference any more than it would in a reference by consent.” It was entirely proper
State ex rel. v. Woods, 234 Mo. l. c. 26, decides no question pertinent to the question under examination.
Star Bottling Co. v. Exposition Co., 240 Mo. l. c. 638, is cited. That was a reference by consent, the court said. In addition, this was what the court declared it was deciding: “Will an appeal lie from an order nisi granting a new trial when both parties litigant asked a new trial and one is granted to either %’ ’
State ex rel. v. Reynolds, 245 Mo. 698, was a prohibition proceeding. The sole question was whether the amount involved gave this court jurisdiction. The remarks on review on appeal are wholly beside the question and are expressly denominated “argument.” Nor did the court rely on- this argument, finally, in reaching its. conclusion.
Reed v. Young, 248 Mo. 606, will be read in vain for any suggestion that the question in the instant case was presented for decision. The question raised there was whether the reference violated alleged constitutional rights.
State ex inf. v. Arkansas Lumber Co., 260 Mo. l. c. 274, is cited. That decision dealt with a question analogous to that whether a trial court could review the referee’s report on the weight of the evidence. In that case we were dealing with our own commissioner. The right to review on appeal could not have been involved. Nor did the court attempt to decide it.
In Sonnenfeld v. Rosenthal, 247 Mo. l. c. 250, the court said it was empowered “to review the findings of fact,” but did not then intimate the extent of the review. When it reached the point of applying the rule, it said (l. c. 264), after setting out the evidence: “From the foregoing facts we find that there is substantial ' evidence to sustain the report of the referee
In regard to what is said in the dissenting opinion concerning State ex rel. v. People’s Ice Co., 246 Mo. 168, it is only necessary to refer the reader to that decision. The dissenting opinion so misconceives it that comment is unnecessary.
In Williams v. Railway, 153 Mo. l. c. 511, 512, the court considered the scope of appellate review of a finding by the trial court, made after sustaining an exception to the report of a referee. It had previously used the language quoted in the dissenting opinion. In connection with the question above mentioned, however, it held the presumption in such case to be “in- favor of the judicial action of the circuit court whose duty and prerogative it was, in a case like this, to examine the report of the referee in the light of the evidence and affirm or reverse his action. That decision” (123 Mo. 662)( “we think is in harmony with our practice in reviewing the granting or refusing of new trials. The presumption is in favor of the action of the trial court and it is only when we find that it has abused its discretion [italics ours] do we interfere with its judgment.” It will hardly be contended this supports the conclusion reached by the dissenting opinion that the evidence may be weighed on appeal. In fact it is well established that a trial court, in granting or refusing a new trial on the evidence, will not be held to have “abused its_ discretion” unless there is, no substantial evidence supporting the party who succeeds on the motion. This is the rule of the Williams ease. It is the rule of the majority opinion.
Tn Phillips v. Todd, 180 S. W. l. c. 1043, the Springfield Court of Appeals suggests that, on the new trial, it there orders, the cause ought to he referred.
Bond v. Finley, 74 Mo. App. l. c. 25, is cited. The opinion is by the writer of the dissenting opinion in the case at bar. It holds the trial court had the power to “make its own findings upon the evidence reported by the referee.”
Vandagrift v. Masonic Home, 242 Mo. l. c. 154, is cited. This opinion, also, was written by the writer of the dissenting, opinion in the instant case. That case was referred hy consent. It may have been one subject to compulsory reference. The holding to which we are cited is this: “Our conclusion is that the umdisputed facts” (italics ours) “in this record, which we have re-examined (since the case-is one where a compulsory reference might be ordered, Williams v. Ry., 153 Mo. l. c. 495) clearly sustains the deductions of the referee that,” etc. In that case the report of the referee had been confirmed by the trial court, and it is not believed the learned judge who wrote that opinion intended to be understood as holding that in such circumstances this court could weigh the evidence. Obviously, the decision was not intended to run counter to Section 2013, Revised Statutes 1909. In view of this situation in that case doubtless the court, in citing Williams v. Railway, intended to cite it in support of a rule not in conflict with the applicable statute. The only rule applicable in that case was that substantial evidence required an affirmance. [Section 2013.] We conclude, therefore, that the citation of the Williams case amounted to a construction of that case to the effect that the scope of review it warrants is merely to determine whether there is substantial evidence. Unless this was the meaning of the citation, the court must be held to have cited the Williams case to support the application, to
Opposing the conclusion in the dissenting opinion, cases from other states are cited in 246 Mjo. 168. It is there stated there is no well considered decision in the Union which holds as does the dissenting opinion in this case. That statement was made as the result of an examination of many cases. It is practically unchallenged in the, dissenting opinion, as we read it. As shown above the cases from this State do not support that opinion.
The principle of the dissenting opinion necessarily results in requiring us to review the weight of the evidence in any action at law involving the examination of a long account, whether the case is referred or tried to the court or before a jury.
The rule applied in the opinion prepared by th'e Chief Justice is the correct one. I concur.
