*1 Term, [April Missouri, Yol. 315. of rales The furnished.” service to be for the thereafter to be force are Company as to extensions Louis Gas regulations of the St. they If are charges. rates and integral parts of its schedule just hearing, as Commission, after unjust and unreasonable But them. respect modified the schedule to, may referred them and maintain individuals certain aside as to set them it cannot cannot “ex- Company Gas generally. The public in force as to agreement, or any of contract form corporation any person tend to except such facility, any privilege or regulation, or any rule or cor- persons and to all extended uniformly regularly as are Service Public can the Neither circumstances.” like porations under Commission. is affirmed. the circuit absent. Graves, J., concur, except
All Appellant. King A. J. v. John July One, 30, 1926. Division appeal an order Appeal. from On TRIAL: Grounds: 1. NEW new ing grant- ground for reason or trial, fails to show record wherein ought sustained have been it, if sustained the order will be trial. assigned for a new grounds motion in the on aside once been set Weight a verdict has Evidence. Where -:2. evidence, weight verdict against a second of the ground it was that having twice been ground. But a new that set aside on cannot be statutory grounds, third trial granted the verdict at a previously other on weight against ground of the evidence. may that it is set aside on Recitals. the record shows -: -: Record Where Absent granted previous terms of the circuit at two new trial was but be that why they granted, grounds were it will not or reasons fails to show trial, granting plaintiff assumed, appeal an order a third new on an previous was set the verdict in either of the two trials aside on weight evidence, ground against for the new trials statutory ground granted have on court believed been guilty jury in a had erred matter law or misbehavior. Grounds, Specify nothing -: Failure Where there 4. record to show that previous granted new trials were weight evidence, the verdict was trial on the verdict of or and the motion for a new present appeal assigns grounds, among others, “the of the evidence” and “the verdict is the result passion prejudice,” and the record does not recite for what reasons grounds sustained, presumed what the motion was it will be sustaining statute, the trial court record will be in reviewed for the the motion did not violate the purpose determining whether the order ground. for a new trial can be sustained on either Ending Expensive 5. sued defendant Litigation. DIRECTED JUDGMENT: Where dollars, fee of one hundred and the case was tried once justice peace in the court aof courts, and four times in circuit appealed appeals, three times apparent to courts of expense (not litigation speak of the time jurors and cost to the State of judicial officers) far for, exceeds the amount sued and the suit should Mann. in accordance done that can be a directed ended procedure. law and established give cannot the trial court at law In an action -: of Pact. Issue plaintiff, can nor return verdict peremptory instruction to *2 plaintiff, judgment for enter appellate the trial court to court direct the where contradictory. fact the evidence and the issue one con- one Abandonment. Where Performance: -: -: Contract: 7. undertaking accomplished he particular a to serve another until tracts wilfully cause agreed compensation without and recover the cannot abandons agreed ren- performance service to be the the the work before attorney engagement dered; applicable an especially to an and rule is this by his client. Voluntary Bring -: to Petition: 8. -: Nonsuit: Abandonment. its purchased -: To Suit: Demurrer given upon corporation all A a of trust had deed properties, upon had and its foreclosure six seven of its stockholders large stockholder, them. Defendant was a not one but holdings capital purchasers, and stock. hence was about to lose his moneys corporation pay sufficient He claimed that had hand to mortgage debt, payment due interest and that the default in the deprive subsequent of the interest and foreclosure sale were a scheme to interest, employed attorney, corporation, plaintiff, of his him and an against purchasing stockholders to set aside the deed of thought foreclosure. Plaintiff testified that defendant such a suit would compel purchasing compromise stockholders to and for reimburse him money lost, brought they up properties, and wanted suit to tie so that re-incorporate, agreed up petition could not tie them and he to draw that would up. up petition, He drew and filed a issued caused summons to be served, pendens. plaintiff and and lis Defendant testified was prosecute conclusion, paid the case to a final and was to one hundred it, dollars if he lost and two hundred dollars if he A demurrer to won. petition petition, the terial was containing filed and sustained. An amended ma- allegations original, filed, contained a demurrer and filed, argued term, thereto and at the next testified that court indicated that sustained, thereupon the demurrer would be and he voluntary nonsuit, might took a in order that the case renewed within year; is it admitted testimony contradicted, uncorroborated, is not nor by defendant, who testified and insists that had voluntarily action, abandoned the and had dismissed it without his knowl- edge or consent. dollars, theory Plaintiff sues one hundred on the employment contract was that he was receive that sum in jury event. aside, that defendant, returned a verdict for trial court set and from an order appealed. Held, a new trial defendant testimony justify defendant’s would not remanding this court in the cause have disbelieved with directions to plaintiff, enter jury may since the plaintiff’s testimony that the trial court had ruled that the amended defendant’s did not state cause of have believed testimony case, abandoned the fact, both which were questions issues of for the to determine. Corpus Juris-Cyc. Appeal Error, References: J., 2557, p. 4 C. Section 665, 8; 2733, p. 783, n. Section New; n. 54 2736, p. 785, New; Section n. 3 2813, p. 832, New; Section 2816, n. p. 833, 57; 47 Section 2830, p. n. Section 844, 66; 3223, p. 1186, 66; n. 3264, Section p. 1213, n. Section n. 76 New.
Attorney Client, J., 357, p. 764, 6 35, 37, C. Section Trial, n. 38. New 29, Cyc., p. 731, 89; 92; p. p. 1009, n. n. n. 54. Springfield
Transferred from Appeals. Court of Affirmed and remanded.
Hargus appellant. & Johnson for op Term,
320
315.
[April
Yod.
Missouri,
(1)
granted
party
There can be but
new trial
to the same
one
weight
because the verdict is
See.
evidence.
1919;
Eys.
506;
Co.,
App.
S.
v.
152
Van
O’Donnell United
Mo.
(2)
prior
Loon
new
Co.,
v. Power
271
209.
There was
trial
Mo.
granted plaintiff
on the
that the verdict was
this cause
Mann,
S.
v.
199 W.
evidence.
(3)
attorney’s
In
abandonment of the
cause an
absence of due
King,
recovery.
App.
v.
73
of his
bar
Blanton
client will
attorney
150;
(4)
an
King Mann,
or not
v.
W. M.
Crook
(1)
granting
specify
an
a new trial does not
Where
order
on
be
ground
sustained,
appeal
which
the order will
on
it
is
ground
mo-
good upon
set out
sustained if
(2)
Webster,
351.
193 Mo.
Whenever
tion. Lead Co. v.
result
trial
is satisfied that
verdict
court
duty
grant
tidal;
a
and
new
passion
prejudice
and
its
of
reviewed,
be
appeal
on
will not
of
trial court
such discretion
arbitrarily
exercised.
has been abused
such discretion
unless
Claybaugh
330;
v.
App.
Eailroad
Co., 153
Eigby v. Transfer
a
trial
fact
new
has been
(3)
630.
The
Co.,
App.
56 Mo.
weight
against
of the evidence does not
granted once because
Culp
.v.
trial for other reasons.
granting a new
prevent
(4) The
77;
1453, E. S. 1919.
trial court has
Sec.
Lodge,
App.
198 Mo.
trials, and will
be
motions for new
not
passing
on
wide discretion
direct
with
Unless in
conflict
by
appellate court
with
interfered
judicial discretion; and
of
of abuse
law or the result
established
showing,
a
trial
be,
in the absence
presumption
will
granting
1453,
1919, in
statute, Sec.
E. S.
did
violate the
court
Co.,
(5)
SEDDON, long has a and tortuous career C . This action attor through $100 State. It is collect the courts of the one against ney’s originally E. Mann fee. It was commenced John co-defendants, 12, 1915, in father, T. on June Mann, W. as County, it was in Vernon from whence justice-of-the-peace court novo, appealed County and tried de the Circuit Court Vernon resulting judgment in a for both defendants on October verdict 8, a new day, 1915. On same a motion for trial, granted, but record and a new trial was sustained assigned grounds trial court for its does not show the order. change
The case was to the Circuit Court then removed on venue again resulting County, had, Bates and a there a verdict trial On judgment on November for both defendants February 6, 1917, for the latter court sustained motion trial, (so far assigning new therefor without reason shows) appealed the record and defendants Kansas affirmed, Appeals, granting Court of where order new trial was holding that, grounds having assigned no been the latter court trial, the trial it would inasmuch assumed, court in new complained as the motion a new verdict trial evidence, that the trial court have sustained exclusively ground, so, on that was a matter the motion within the was not reviewable on discretion court appeal. 199 S. [King Mann, W. the trial having affirmed, the cause was returned to the Circuit County start, resulting in a verdict and Bates second February for W. T. a directed defendant John Mann. verdict and *4 appealed to the Kansas of E. Mann Court City Defendant John judgment appealing from the in favor Appeals, plaintiff but drops the Mann, the latter out of case. The father, of W. T. the City appeal, on the second held Appeals, of Kansas Court directing for in a verdict defendant trial erred court judgment and remanded the cause for Mann, John E. reversed the 836.] Thus, 207 S. [King Mann, v. W. action returned a retrial. County start, for a third whence of Bates Circuit Court change of venue to the by plaintiff on Circuit Court
it was removed again resulting in a verdict and for County, of Clair St. on December 1920. Plaintiff defendant, John sole April 8, 1921, trial, which was a new a motion for sustained its assigning no reason or for action. De trial court Appeals, of which court Springfield Court appealed fendant granting a new trial court trial was the order ruled appellate would be of indicated
proper, but directions to the court be remanded cause that the court Sup. 315 —21. op [April Term, You. 315. Missouri, Court
to enter a judgment costs, $100, for for with interest opinion it not deemed its appellate for the fact that the were the Kansas in with the decision of conflict Therefore, King Mann, Court of v. 207 S. W. Appeals in Springfield Appeals because of certified conflict, of such [King Mann, cause to this court for final determination. S. W. once Thus, appears the action has been tried justice’s courts, in a has in three different circuit four times appeals, of and now we ruled three in two different courts times trying judicial hand and minds are afforded our opportunity of upon this momentous action. briefly opinions in the
The facts are stated three somewhat fully again, Stated more Appeals several Courts herein cited. they are as follows: meat-packing corporation,
Defendant was a in a stockholder mortgage May, 1913, $6,000 had in executed a or deed of trust upon equipment, its real bills property, plant, meats and receivable. mortgage in payment This had been foreclosed for default of inter- est, and some or seven of the stockholders and directors of the six corporation purchased properties, in the name one them, $15,000. who Defendant, at foreclosure sale the sum of value) (par capital corpora- $6450 was the owner of stock tion, purchasing was not one of the stockholders at the foreclosure January position Hence, held on he was in his sale lose holdings corporation. capital stock of the Defendant claimed corporation had sufficient funds on hand to make the inter- payment mortgage, payment est due the default subsequent was a scheme interest and the foreclosure or device corporation which defendant other stockholders were corporation. to be “frozen out” their interests Defendant employed him as an admitted purchasing stockholders to set aside the deed only defendant differ of foreclosure. Plaintiff and as to the terms employment, which was verbal. of the contract “They (defendant father) thought Plaintiff testified: plant brought up present to tie the its condition, a suit was purchased that had that the stockholders—those it—would come to compromise, pay money; them some of them their their folks, being packing-house bought who had object keep re-incorporating law; re-organizing and plant, from under compromise, get them for them to meet some of wanted *5 they they they lost; and money said wanted that to*know if said, know; I I don’t I bring I a suit. would would such hear all they wanted a They brought, that simply reiterated facts. a that there could not be plant, re-incorpora- so up packing to tie y. Mann. bought tion it; thought stockholders that had they and that they way that in that compromise. could a if Well, says, effect I you is all done, want I will fox. the suit one hundred dollars, and I up, nobody think we can tie it so that would there be willing purchase go to corporation stock and into a litigation; they spoke up said, us; both satisfactory and that is you get right we want at it. I went to the officeand until worked eight about and my o’clock came down skeleton and dictated (the it to her stenographer), copied something she .and like three copies had; four I Manns, statement it to I then read they just exactly they said what I wanted. then prepared pendens a lis is, notice of suit—to file —that office; recorder’s papers office, these were taken to the sheriff’s the sheriff night, served them that on the various stockholders of corporation, including it; trustees had foreclosed gotwe through, think, I about ten minutes to twelve o’clock. When that was done, they said closed, the banks are now we will come your Monday morning, you office pay hundred dollars. said, I right, gentlemen.” that will all testimony two
The tends witnesses to corroborate testimony that he was to paid fee of one hundred dollars merely filing papers suit. respecting employment: Defendant testified the terms of the “I up King’s morning, went to Mr. office that and told him I wanted packing company; him take a agreed case and he ease; I him the case, handle the told facts of the Iall could good give him, many them; I there was and went over them again; together; agreed we went the ease over he to take the lost the dollars, fight case for hundred he case—he was to dollars, if through the court —and two hundred won circuit he it. time, agreed court; get books in
He also at the that was the it; from it in principal part prove we had to order to beat gotten I brought my never into court. So case. books were lunch, twelve-thirty, and up about he father after rehearsed (father) good he fee; he said stood father, and case to framed the at that- to work and time. He was at lie went up I every petition, there afternoon on most time work case; good get 1 had would books writing it. He said dismissing I up. The first ever knew of the and clear it in court got T petition, summons that I was sued for or of that attorney’s fee; I to find out the dis- is how came case was thought inquiring it at I ; about the clerk’s office. I 1 went to missed time, then, got summons; until I all the had a inquired.” know until Cross-examination: course, I didn’t *6 op Missouri, [April Term, Vol.
“Q. any you every desired past day; You went on office time his you and saw Mr. anything case, upstairs to know about the walked you? yes. King, Oh, didn’t A. you? A. ”Q. go frequently him, to didn’t up You did there see ,
Yes, sir. you? Yes, A. “Q. weren’t up times, You were there dozens of sir.
“Q. Yes, sir. During pending? the time suit was A. you you “Q. sustained, he when After the first demurrer was told petition you were up preparing when was second were there he — making you? well—yes, prepara- A. was there, weren’t he Yes— petition. prepare tions to the second court, “Q. up May at term of You knew that would come yes, you. Well, A. I it would. didn’t understood Why go King’s during May “Q. you to Mr. office didn’t up I to your about case? A. went his office term of court ask frequently, King that Mr. pending rather to make sure the trial it; proper line on I was case, know about the and the after would case, why I let him handle himself. he satisfied that knew King’s then, you “Q. Why you go as had didn’t to Mr. office Well, racking in doing A. there wasn’t use that? before I very him facts in his office. was there; given around I get handy there; me, he could me. if he wanted “ that, you jury, you why can make Q. only Is answer necessary.” I there, Why, didn’t think it was go A. up didn’t ”Q. Did father, King testified: Mr. Mann, defendant’s W. T. your have a conversation about this about the you son hurry; case; Well, I was in didn’t talk much about the fee? A. through court, would take the case the circuit but he told me that he there, get court; lost, into the books he he it out thresh losing; and he wanted two hundred if a hundred dollars wanted good me wanted to stand fee. Said we had it—and won hurry right I case; and in a went on. come good I was six-thirty; typewritten, petition and when the six about me, thought it; says, what I I King it to and asked me Mr. read good me.” sounds mortgage set aside the foreclosure Defendant’s attorney, Circuit Court of Vernon plaintiff, defendant’s as (the day employment) day service (cid:127)County on the last February 1915, 8, said court. On February, term of before court, day February term of defendants 1915, the first February 11, 1915, On petition. filed a demurrer in that suit February term, defendants’ demurrer day the fourth granted' sustained, and the court leave petition (defendant here) petition April amend his before that suit v. Mann. King, 1915. Plaintiff filed an for John granted by behalf within the time succeeding May May day court. On first term court, the defendants that suit filed a demurrer to the amended May day May petition. 14, 1915, On fifth term of following was entered record said action: “Now on *7 day by says he will not further this comes the voluntarily Wherefore, cause, dismisses same. prosecute adjudged by is the court the take it ordered day go that defendants hence without nothing by his writ herein and from have and recover of and and that defendants expended and execution issue therefor.” in this behalf costs by testimony, which is not contradicted defendant Plaintiff’s record, argued the court the demurrer to is that he before the voluntarily dismissing and that before petition, and, going demurrer, that he was sustain the court intimated by rights of his client forever final foreclosed a rather than see knowledge dismissed the with the judgment, he a might year new action within one commence from that his client plain- petition, Relative to the amended dismissal. date of such gave permission my petition me to amend “The court tiff testified: prio.r May day April; that term the first or before on stating facts, petition, prac- I same circuit court. general I considered a others that all tically, with few —because incorporated May got I I at the facts from them facts, except might alleged no what Now I had be term. testimony they me, fact, I had no furnished
petition; they books, agreed; I to furnish the had no all; they had failed at nothing proceed with, I had testimony all, except that. because at facts, any present; nor even and I clients couldn’t had no further I got that, I then on to the fact if I clients. try a case without nonsuit, they voluntary dismissal or a could take would time; year from that and that it wouldn’t within one another Knowing that, permit I suit. asked the court to to another be bar it.” to dismiss me is the order of the appeal herein trial court
I. Defendant’s The record before us does recite the a new trial. granting sustaining by trial court in ground given or reason trál ^or a new new trial. motion Grounds ought Hence, nisi must be sustained if it New Trial grounds set forth have been sustained Mining [Metropolitan Lead & new trial. Zinc the motion for a cited.] Looking Webster, 351, there eases Co. forth, among trial, others, find that sets
motion for a we new op [April Term, Vol. Missouri, following grounds: “3. Because the verdict of the evidence in the ... case. verdict is the Because the result passion and prejudice.” (Sec.
Our 1919) provides: every statute R. “In S. where has surprise there been a mistake party, agent or of a attorney, by or court, jury or misdirection of the or a mistake by jury, contrary or a finding to the direction practiced party other, or fraud or deceit one on the or the perjury satisfied that or mistake has been committed witness, improper finding also satisfied that an verdict by any matters, was occasioned party just such that the has a defense, cause shall, proper of action on motion of party, grant trial, and, necessary, permit pleadings new to be just.” amended on such terms as be provides: “Only Section Revised Statutes one new party, except: First, allowed either where the shall law; triers of the fact shall erred -in a matter of second, have when misbehavior; guilty . . .” shall *8 may It been that the trial court was opinion have of the that against weight the of the verdict herein was the evidence. While the 1454) (Section duty of makes the specify statute the trial court to ground grounds of or on which a granted, record the new trial is nevertheless, if the the specify order of court does not so ground the grounds upon which trial granted, or a new it will be sustained any ground set- out in motion [Mining if the is sufficient. v.Co. Furthermore, Webster, supra.] the trial court right has the grant party trial, in equity case, to either one new either a law or finding against weight it is that or if satisfied the verdict the of too, (Hurley Kennally, 225), v. 186 evidence and that, the regardless may new trials granted of the number of that been have upon grounds. party either other different v. Mis [Kreis ] Co., Ry. power 131 Mo. Such exclusively Pacific souri 533. discretionary in the trial court and will not be interfered with on However, of an at least the absence abuse of appeal, discretion. that verdict we have ruled where a has once been set aside on the against weight verdict was the ground that such of the evidence, a ground. cannot be aside the verdict set under statute on that second Railway, L., P. Co., H. & Loon v. Mo. 209.] [Van that Appellant insists has been once awarded a new against ground that the verdict was' weight on the trial of the granting evidence, hence, and, new trial from which upon appeal ground. is taken cannot sustained that this How- ever, support before uS does not appellant. the record claim of again True, February 6, 1917, on October the circuit counties, respectively, of Bates awarded plaintiff courts Vernon King v. Mann. judgment against him, new trial after verdict and the record any) given grounds (if here not those does show reasons They granting may have respective trial courts new trials. granted respective that triers
been because the courts believed guilty of the had erred of law fact a matter been the. We It do not know the record before us. misbehavior. (199 Appeals
is also that W. true Kansas S. 705), trial appeal, on the first affirmed the order of the court because may upon for a new trial trial court have sustained motion ground weight evidence, that the verdict being grounds a new trial. one of the But that motion entry record) (absent finding tantamount to a ground. granted upon the trial new trial There court being that a new trial has nothing before us to show record ever verdict granted ground been ground being in evidence, such motion grounds appeal for new trial before us on this specified being record, trial sustaining motion not court such granted we on that may properly assume that have ground, peculiarly solely province which is one within Co., [Hoepper Furthermore, Hotel 142 Mo. the trial court. v. 378.] passion is'the result court is verdict trial satisfied motion), (and prejudice was also duty will grant trial, a new and such discretion the court’s Co., Transit [Rigby abused. v. 153 Mo. not be unless interfered (absent a App. presumption showing obtains granting the statute in trial did not violate contrary) that the Railway Co., 699; 211 S. W. Hoepper trial. second new [Oliver order nisi supra.] It follows a new Co., v. Hotel affirmed. must be *9 IT. determine whether the cause should be It remains us to (from it comes appeal) to the whence on remanded circuit judgment plaintiff (respondent). It to enter a directions litigation by judgment should ended right proper and appellate action of the court is con- if such appellate orderly procedure legal and principles with established sistent State li the Federal and Constitutions. prescribed statute and history litigation instant from the clearly apparent way costs, (by litigation printing of court of this expense attorney’s fees, speak not to time briefs, abstracts officers) judicial far jurors exceeds the State of to the cost would, litigation. therefore, judgment It our pecuniary sum according do law suit if we so end determination procedure. law and to established [April Term, Missouri; oe Yol. 315. Springfield Appeals (235 Court of 506) held, upon S. W.
record now before taking us and the defendant’s version of the contract of employment .and transactions as true and involved eliminating the oral evidence of plaintiff, legal that there is no de- fense action; to this words, other plaintiff court held that the i^i performed his fee, upon contract and earned his even defend- theory ant’s judgment and that a should be directed plaintiff favor of $100, with interest and' costs. The conclu- sion of that court is upon reasoning arrived at sustaining that the of the demurrer first, original, petition to set aside the (prepared foreclosure by plaintiff sale attorney) as defendant’s a final determination of that action, entitling plaintiff fee, to his and, although he petition amended leave of court and thereafter dismissed the such final determination of de- rights fendant’s thereby was not affected, because that Court of Appeals finds that alleged no new substantial facts were petition.
The Kansas Appeals (207 Court of 836), S. W. on the hand, other held, upon substantially record, the same that whether plaintiff performed employment question contract of is a jury. fact for the opinion Therein lies the upon conflict of the case discussing is certified to this In court. matter, through Kansas City Appeals, speaking Court of J., said: Trimble, “Even if the was, contract be as defendants claim it we are opinion that, in this ease embodied in set aside the all sale he had or was furnished, facts and that appeared he then .get did all he could to the court to overrule demurrer, so, second but was unable to do and the court had determined and was about to sustain demurrer, then performed part contract, herein his and is entitled to his though $100, fee of even dismissed the suit before the formally the second demurrer was entered. In these circum- stances, the dismissal was not an abandonment thereof object before the purpose of his endeavor and the of the contract was obtained, namely, to obtain the of the circuit court right plaintiffs in that suit to have the foreclosure set only aside. But it will be observed not did the terms parol dispute, contract rest in and were in explana- why tion of the order of dismissal was made after the second demur- ivholly only parol,- admitted, rer was filed also is not appear way. but the to be records of the court the other The record says dismissed the suit. But explanation voluntary shows that did not such action arise until after he had *10 vainly sought get to otherwise, the court to rule and that he then plaintiff in order that in that dismissed case case could v. Mann. peremptory that instruction to Hence, it to us another. seems Mann was tantamount [against?] the defendant John E. find for jury plaintiff that the contract was as claimed it telling the either to as to the dismissal of the case after was, that evidence must believed. These matters were demurrer was filed the second - concerning’ party facts which one had testified not collateral mere They contrary. were facts neces- and there no evidence was plaintiff to De- sary in order to entitle recover. to be determined had abandoned the claimed the fendants finally determined, appar- and the record of the court it was before theory. it, If he did abandon and the contract ently supported that to say was, then he was entitled recover. as was defendants this, App. 148, To meet King, 73 Mo. [Blanton that his dismissal was testimony attempted prove after by oral in the and that fact, obtained the court’s had, solely prevent the court was was the dismissal finality. becoming But from whether he did about to render judgment on the a favorable demurrer before to obtain endeavor jury. however, instruction, The dismissing ease was for This accept it as true. was error.” compelled in effect petitions, prepared by plain- and filed original and amended defendant, defendant’s action to set aside attorney for tiff, in the sale, are set out in haec verla record before foreclosure supererogation be an act of lengthy, and it would They are us. say carefully compared that we have
copy Suffice it to them herein. allegations petitions two and find the contents and following allegations additional petition contains the amended original petition: “Plaintiff first further not embodied fact conveyance (deed trust) made as pretended states that said any authority or sanction of law without aforesaid defendants meeting to-wit, of said board of directors this, that no whatever was ever held the board of directors corporate capacity in their trust, pretended deed and that authorizing the execution absolutely conveyance void and no force pretended said the said Plaintiff further states defendants . . . effect. pay discharge off and abundantly possession in their money said lawfully due, which directors had collected
all interest . . . Plaintiff further stockholders. and the other ready pay offers into court the stands now that he states paid purchaser at [by the foreclosure amount full pretended to said incident foreclosure.” including all costs sale], petition the amended embodied some apparent So original petition. Whether set forth fact not allegations have satisfied the mind allegations would additional those stated a cause of *11 Term, [April Missouri, Court Yol. 'allegations whereas the oi’iginal petition were deemed to insufficient, we know, accept plaintiff’s do not unless we as true testimony argued the demurrer to the amended the court and the court that he would sustain the intimated demur rer petition. testimony to the plaintiff’s While on that by yet testimony, matter is un contradicted defendant’s by corroborated. Neither is it admitted as true defendant. The jury may testimony have disbelieved on that circum believed, hand, stance and have the other action, is theory abandoned defendant’s apparently supported by record of the circuit court. areWe by expressed inclined to view the Kansas of Appeals question jury. was one fact for the For us to direct entry judgment of a in favor of herein would amount ato substitution of our own on an issue of fact jury, who, kind of an are made the exclusive by triers of facts our State both Constitution and our Code 28, II, Const.; of Civil Procedure. Art: Mo. Sec. R. S. [Sec. general the terms of the principle, employ As contract of attorney client, ment between whether the services were rendered attorney justified value, whether in with questions drawing jury. Cyc. from the are all of fact for the [4 King, In Blanton and eases there Mo. App. cited.] that, contracts for an held where one indefinite time until particular accomplished, service is he cannot recover where he wil fully without the work before cause abandons the expiration service; performance of the time this rule is held engagement especially applicable to be client. long* expense duration and of this
While, litigation because of the comparatively pecuniary involved, small amount we are litigation by directing not to end the the trial reluctant court to judgment, yet we are satisfied that we a final enter cannot do so. violating without us, orderly record before rules statute and prescribed our State procedure Constitution and on an substituting issue of fact for our own that of the triers the facts. constituted of the circuit
It follows a new the cause remanded retrial, be affirmed and trial must Lindsay, G., concurs. so ordered. foregoing opinion C., by Seddon, PER adopted CURIAM:—The judges concur, All of the opinion except Graves, of the court. J., absent.