39 Mo. App. 154 | Mo. Ct. App. | 1890
delivered the opinion of the court.
The plaintiff is the public administrator of Cape Girardeau county, and, as such, has in charge the administration of the estate of A. H. O’Donoghue, deceased. On the thirtieth day of October, 1888, the plaintiff presented to the Cape Girardeau court of common pleas a demand for allowance and classification against the estate of John P. Hitt, deceased, in which he claimed that his intestate had performed certain literary work for John P. Hitt of a certain value stated. The case was tried by a jury, and the defendant obtained a verdict and judgment, and the plaintiff has prosecuted this appeal.
It appears from the evidence that A. H. O’Donoghue died in Cape Girardeau county in May or June, 1883, and that letters of administration on his estate were not granted until the twenty-third day of October, 1888. It
The plaintiff introduced evidence tending to prove that, for seven or eight months prior to the death of A. H. O’Donoghue, the latter was engaged in writing a book for John P. Hitt; that it was not completed at the time of the death of O’Donoghue, and that the manuscript was not delivered to Hitt until about April 5, 1884; that the reasonable value of the work performed was, according to the various estimates of the witnesses, from seven hundred to sixteen hundred dollars. It was also developed by the plaintiff’s evidence that O’Dono-ghue was a man of learning, and that John P. Hitt was a man of no literary attainments; that, during the time O’Donoghue was at work on the book, the parties had many interviews and consultations about the work, and that O’Donoghue at the suggestion of Hitt re-wrote and revised a good deal of the manuscript. The plaintiff introduced Mrs. O’Donoghue, the widow of plaintiff’s intestate, and offered to prove by her conversations with John P. 'Hitt, occurring subsequently to the death of her husband, in respect of the services performed by her husband in writing the book, and the statements by Hitt as to the value of these services; but the court, on the defendant’s objection, excluded the evidence.
The defendant interposed the general statute of limitations as a bar to the allowance of the demand.
The defendant has filed a motion in this court asking that the appeal be dismissed for the reason that, in probate matters, no appeal lies from the judgment of the Cape Girardeau court of common pleas to this court. This question is at the threshold of the case, and must be disposed of first.
In 1853, the legislature by a special act extended the territorial jurisdiction of the Cape Girardeau court •of common pleas over the entire county,- and also gave
Section 10: “The circuit court of Cape Girardeau county shall have a superintending control over the said court of common pleas, and appellate jurisdiction from its final judgments and decisions, by appeal or writ of error, which shall be allowed and prosecuted in the manner and with the effect prescribed by law in cases of appeal or writ of error from the circuit court to the supreme court, except that no such appeal or writ of error shall in any case operate as a supersedeas or stay of execution, or other proceedings on the judgment or decision of the said court of common pleas.”
Section 11. “In all cases of final judgment or decision of the said court of common pleas, appeals and writs of error may be allowed and prosecuted directly to the supreme court, in the manner and with the effect in all respects as is or may be provided by law in cases of such appeal or writ of error from the circuit court to the supreme court in civil cases. ’ ’
The respondent’s counsel insists that, under the foregoing provisions of the special act, all questions concerning the administration of estates determined in the common pleas court must, in the first instance, be appealed to the circuit court of Cape Girardeau county, and there tried de novo. We cannot agree to this. The special law by which the Cape Girardeau court of
The court gave the following instruction, asked by the defendant: “On the part of the defendant the court instructs you that, although you may find from the evidence that John P. Hitt employed Alfred H. O’Donoghue to write and prepare for him the manuscript of a book, and that O’ Donoghue did such work in pursuance of his employment, yet, if you shall further find from the evidence that the said O’Donoghue died on the téntk or eleventh day of May, 1883, and that the said John P.Hitt survived him more that five years, and died September 3, 1888, then plaintiff ’ s claim on account of such services of O’Donoghue was barred by the statute of limitations at the time of the death of John P. Hitt, and your verdict should be for the defendant.”
If this instruction properly declared the law, then the judgment must be affirmed; otherwise it will have
That the right of action in this case did accrue during the lifetime of Mr. O’Donoghue, we think is fully established by the plaintiff’s evidence. The evidence introduced by the plaintiff tended to prove that the work was performed under the immediate supervision and direction of John P. Hitt, and that the subject-matter of the' manuscript was examined by him, as the work progressed, and was subject to his dictation. Prom this, the law, in the absence oí a special contract, would imply a promise by Hitt to pay. the reasonable value of the work performed, and this evidence excludes the theory now urged by the plaintiff, that O’ Donoghue had no right of action against Hitt, until the manuscript was accepted by him. We do not think that O’Donoghue’s right to compensation for the work actually performed by him in any way depended upon the completion of the work, or its acceptance by Hitt.
Our conclusion is that the right of action existed at the date of O’Donoghue’s death, and that the instruction was right.
We have not deemed it necessary to refer to the plaintiff’s instructions for the reason that the whole controversy hinges and depends upon the correctness of the defendant’s instruction.
The judgment of the common pleas court will be affirmed.