Suit in equity for accounting; issues joined by answer and reply; a reference below; a report by the referee; exceptions by defendant overruled; and judgment for plaintiff for $8,494.86. Defendant appeals.
There is a cross-appeal by plaintiff from a judgment in favor of defendant on certain items. Such cross-appeal has been briefed, as a separate appeal. It will be convenient to preserve that method of consideration here. Accordingly, it will be determined in a separate opinion.
The bill runs on the theory that plaintiff owned “a subdivision,” known as Greenwood, part in the city and part in the county of St. Louis; that defendant had a real estate department and plaintiff, desirous to sell its lots, in April, 1904, appointed defendant its agent to sell and receive payment; that defendant accepted such appointment and thereunder sold many lots and collected much money, which it had refused on demand to account for. Relief was prayed that defendant be required to furnish a statement and account of all such money, etc.; that an account be taken between plaintiff and defendant; that plaintiff have judgment for the amount so found due; and for such further relief as may be equitable and just.
An amended answer was accompanied by exhibits purporting to be an account between defendant and plaintiff on lot sales, receipts, expenses, expenditures and payments. The accounts are intricate and long, they would but cumber the opinion if set forth.
A reply, in the nature of surcharging and falsifying said accounts, came in, which also denied new matter.
It seems Syrett was at all times secretary and treasurer of plaintiff; that he was at one time lot sales agent of plaintiff and was actively in control of its
The question is: Where shall the loss fall?
The referee submitted to the chancellor the evidence taken .(we infer in great volume) together with his report — a document of 128 pages of print, which includes his findings of fact and conclusions predicated thereon, covering a multitude of detail, viz.: Each lot sale, the purchaser thereof, the earnest money and subsequent payments thereon, the expenditures of defendant, a resume of the pleadings, the referee’s view of the relationship of the parties litigant to each Other and to Syrett during the life of the agency, an outline of the plan adopted in lot sales for receiving payments, making deeds and bookkeeping on all sides. The fullness and perspicuity of his report bespeak for him the praise due to industry, pains and learning.
The bill of exceptions contained the following:
“(Inasmuch as appellant accepts the referee’s findings of fact, it feels there is no occasion for abstracting any evidence excepting that which pertains to the reason for amending its answer and for asking for the return to it of the tender theretofore made and for a judgment against plaintiff.)”
(Nota bene: The testimony pertaining to the amendment of the answer and reasons for asking return of a $200 tender made by defendant to cover costs accrued and $77 admitted to be due on the state of accounts shown by the exhibits to the first answer, is not pertinent to the merits or tq any cqntrolhng issue in the case, hence will be omitted.)
The motions for a new trial and in arrest are reproduced ipsissimis verbis.
The first reads:
“Now comes the above-named defendant and moves the court to set aside the verdict rendered and the judgment and decree entered thereon in this case, and to grant it a new trial therein for the following reasons:
“1st. The verdict is against the evidence.
“2nd. The verdict is against the weight of evidence.
“3rd. The verdict is against the law under the evidence.
“4th. The verdict is against the law as declared in the declarations of law given by the referee.
*360 “5th. The verdict is against the law as declared in the declarations of law given by the court.
“6th. The verdict is for the wrong party.
“7th. The court erred in admitting incompetent, irrelevant and immaterial evidence offered by the plaintiff.
“8th. The referee erred in admitting incompetent, irrelevant and immaterial evidence offered by the plaintiff.
“9th. The court erred in excluding' competent, relevant and material evidence offered by defendant.
“10th. The referee erred in excluding competent, relevant and material evidence offered by defendant.
“11th. The court erred in overruling the demurrer to the evidence offered at the close of the plaintiff’s case.
“12th. The referee erred in overruling the demurrer to the evidence offered at the close of the plaintiff’s case.
“13th. The court erred in its declarations of law.
“14th. The referee erred in his declarations of law.
“15th. The damages assessed by the court are excessive. •
“16th. The damages assessed by the referee, ■are excessive.”
The second reads:
“Now comes the defendant herein and moves the court to arrest the judgment in this cause for the reasons:
“1st. That upon the record said judgment is erroneous.
“2nd. That' the petition does not state facts sufficient to constitute a cause of action against defendant.
“3rd. The verdict is not responsive to the issues made by the pleadings.”
But, even at first glance, it is apparent there is a serious question confronting us, in limine, viz.:
On the record here, are we at liberty to review the findings of the referee or the rulings of the court on the exceptions to those findings? More precisely put, if the chancellor erred in overruling defendant’s ex-, ceptions to the referee’s report, is that error (according to accepted rules of practice) here for review, absent a ground in the motion for a new trial directed to error in overruling such exceptions?
To that question, we address ourselves.
(a). The rule is that appellate courts approach the facts in an equity case by allowing to the trial chancellor (in this case his referee) the primary advantage of a personal factor, or equation, viz., the actual use of eye and ear in discerning the truth .of witnesses (eye and ear filling a prime office in that regard) and in stamping testimony with its earned and deserved percentage of weight and credit. The uppei; may well defer to the lower court in that particular. Subject to that modification, an equity ease is heard de novo on appeal. Therefore, if it can not be heard de novo in all that term implies — i. e., in very deed and truth — it should not be heard at all on appeal. Peradventure, to do nothing is wiser than to do something and not have the information, the wherewithal, to do right. A clock that stands still is right at least twice a day. A* clock that runs but lamely, may never tell the truth.
Assuming such premises, the accepted doctrine has come to be in this jurisdiction that we will not reverse a decree merely because the conclusion of the chancellor on facts found by him in his decree seems
Accordingly, in this case, when defendant elected to omit the testimony taken by the referee from its' bill of exceptions, it did more than its learned counsel intended to do, for it also elected by that same token to make it improper for us to review the findings of the referee or suspend, reverse or alter the decree based on such findings.
(b). A motion for a new trial, in the system now in vogue, fills a substantial and useful office in administering justice through the courts. Questions are suddenly sprung on a trial judge by versatile and ingenious counsel during the hotfoot of a trial, which he perforce must decide without taking time to consider. No mortal judge is allowed to be so incomparably recondite and ready as to know all the law all the time. If he
Furthermore, the office of that motion has come to be to preserve and fix errors to be reviewed in the record, to mark them for review, by another ruling on the motion itself, on which, when exception is taken and preserved, the whole matter is brought up for correction. We are not saying this is the best plan that might be devised. What we say is that it is the only plan now known to the law, and to which all litigants must conform, until the law is changed and its learning on that head is consigned to the dustheap. Accordingly, it is the settled doctrine of the law that a litigant heading up to a court of review, on matter of mere exception, might as well take no step at all as to omit to take the last and vital step of filing a motion for a new trial, or, if he file one, not to file a good one.
In framing issues here or below the law delighteth in reasonable precision. Accordingly, it applies the maxims: To speak insufficiently is the same as to say nothing. (Idem est nihil dicere, etc.) Not to exist and not to appear are the same thing. (Idem est non esse et non apparere.)
That the record should appear upon which the determination of the appeal might proceed understandingly, we have set forth the motions in arrest and for
Attending to the motion for a new trial, it would be a most strained and unnatural construction on its language to find therein any reference whatever to exceptions to the report of the referee or any complaint based on error in overruling those exceptions. The language of that motion fell from learned attorneys. They must be held to use words with precision and mean what they say-" — not what they do not say. When they use words well known to jurisprudence and well understood as filling certain offices, we are not permitted to give those words a loose, colloquial meaning, but define them secundum artem. In that motion they deal with “verdicts,” the admission and exclusion of “evidence,” “demurrers,” “declarations of law” and “damages” — each of these terms have a well defined meaning in law. They complain therein of the rulings of the court and referee with regard to those matters, but nowhere do they complain of the ruling of the court upon the exceptions to the referee’s report. It matters not that there are no “verdicts” or “declarations of law” in equity suits, and there are none here that we can find. Nor are there any “demurrers” in this record. The argument runs this way: As there is nothing to which those complaints can apply, therefore, they should be given some vitality and held to apply to the exceptions to the referee’s report and to the action of the court in overruling them. But we decline to follow the lead of that argument. It would lead to dangerous and unheard of results, and play havoc with all certainty and precision of construction.
We have so lately been over this matter in State ex rel. v. Woods, 234 Mo. 16, that further exposition is out of place. Other authorities will appear in plaintiff’s brief, which the inquiring mind may consult.
On the authority of the Woods case, we affirm the judgment on defendant’s appeal.
This case coming into Banc and being reheard the divisional opinion of Lamm, J., is adopted.