Sexton v. Snyder

119 Mo. App. 668 | Mo. Ct. App. | 1906

NORTON!, J.

(after stating the facts). — 1. The first and principal argument advanced for a reversal of the judgment is that the court erred in refusing to permit M'r. Snyder to become a party defendant in the circuit court and to file a counterclaim. It is only necessary to say in answer to this proposition that Mr. Snyder is no party to this suit and has no standing in this court. The trial, as had in the circuit court and the judgment entered by it, was against the two defendants Wilson and Mister. There was no judgment against Snyder and there is nothing from which he can appeal’ in this case, inasmuch as he is not a party to the record in the circuit court. There is nothing in section 866, Revised Statutes 1899, authorizing this appeal in so far as he is concerned. If there be a void judgment by default in the justice of the peace couct for want of service on him, it will remain a nullity and can work no harm. At any rate, it was not appealed from and therefore the issues between the plaintiff and Snyder were in no manner before the circuit co-urt. Had the judgment before the justice been valid on personal service against Snyder, and he had appealed, he would have been precluded from filing any counterclaim in the circuit court not filed before the justice, as it is so expressly provided by our statutes. [Sec. 4078, R. S. 1899.]

But this is beside the case entirely, inasmuch as there was no appeal from the justice’s court as to him. There was no one seeking a judgment against him in the circuit court, and therefore there was no demand presented in that court for him to counterclaim against. In the law, these propositions are true:

First. If the judgment against him before the justice is valid, then he, having waived his right of appeal, ought to be made to pay it, and any rights in the matter which are lost to him, were not lost by the denial of the circuit court, but were forfeited by his own act of waiver in failing to appeal.

Second. On the other hand, if the judgment before the justice of the peace is void, it will remain a nullity and cannot be collected and he is deprived of no rights thereby.

Third. If this claim, which he sought to assert in the circuit court against the plaintiff, is valid, it is an independent cause of action and suit can be maintained by him on the same against the plaintiff, the same as before.

Under any of the propositions stated, no rights of Snyder have been invaded by the circuit court in this cause.

2. It is next insisted that the court should have sustained defendants’ objection at the opening of the case to the introduction of evidence under the statement because it failed to state facts sufficient to state a cause of action. The objection is that it counts on contract and does not set up the terms of the contract. The statement says that the original agreement was for the defendants to pay her $8.50 per week at first and to pay more in accordance with the number of persons to be served. Now, while this statement sets up the agreement so far as the first week, it does not count on a specific contract, whose terms are defined thereby, other than this, for it leaves the matter of her compensation after that time to be adjusted in accordance with the patronage of the hotel somewhat; that is, not at all definite with respect thereto. The agreement was pleaded as made, however, for it was shown in proof, that this was as far as the parties went in the arrangement. All of the elements of a contract are not stated, except in the first employment of a week. It does not appear in the pleadings or proof that there was a specific contract for the services after the first week, at $3.50, and the second week at seven dollars provided an assistant was furnished. The evidence shows that while the agreement was made to pay seven dollars and furnish an assistant, such assistant was not furnished but for one week, and that thereafter, prior to the commencement of the services for these defendants, about the first of September, plaintiff notified Mr. Snyder, her then employer who had continued to manage the hotel company, that she would expect ten dollars a week. He did not decline to- give it nor did he agree to pay it. The arrangement between the parties was pleaded as made between them, and according to the allegation therein contained, the amount of her compensation, being left open as it was, became a mere matter of quantum meruit rather than of com tract, and the cause having originated before a justice of the peace where no formal pleadings are required further than such as are necessary to advise the opposite party of what he is charged and sufficient to bar another action for the same subject-matter, the statement is sufficient and is not liable to the objection raised against it. [Darnell v. Lafferty, 113 Mo. App. 282, 88 S. W. 784.]

3. It is insisted that there was no partnership shown in the evidence, and that the court erred in giving the instruction set out in the statement supra. It is sufficient to say that one of the partners, Mr. Bulla, téstified that he and the two defendants and Mr. Snyder and the others named therein as- directors, executed the articles of incorporation, which articles were introduced in evidence, and maintained the hotel jointly under the name of the proposed corporation, the United States Investment Company, from and after September 1st, while endeavoring to incorporate, and after their failure to obtain a certificate of incorporation. It is well settled in this State that when a number of persons associate themselves together, intending to incorporate, and omit to take the necessary steps, or for some reason, fail to perfect the corporate organization, and they proceed to do business and contract obligations under and in the name and style of such intended corporate name, the law will pronounce those thus acting together as co-partners, with respect to such persons with whom they have dealt, under the circumstances stated, and they are to be held to the responsibilities as to such persons, of co-partners. [Martin v. Fewell, 79 Mo. 401.] The proposition of law stated in the instruction is sound. It was predicated upon the facts in proof and was proper. The instructions requested by defendants on the question of partnership, while they might have been proper enough in a case where the facts were different, were rightfully refused by the court because they were not predicated upon the facts in evidence tending to establish the issue of partnership. The one the court gave was eminently proper in this case.

4. It is finally insisted that the court erred in permitting plaintiff to show the reasonable value of her services and. in submitting such reasonable value to the jury. This proposition is predicated, of course, upon the idea that the suit was on an express contract. As said above, the contract was express only in so far as plaintiff was to be compensated at the rate of $3.50 per week until there were more people to cook for, and it is shown that that continued for one week only; after that, she was to have more in accord with the number of persons to be served; the agreement itself thus leaving the matter open, and no agreement was made as to how much more or in what proportion she was to receive additional pay and therefore none is pleaded, and there is no proof in the record about any agreement as to other compensation after the second week, which was to be seven dollars, provided an assistant was furnished. No assistant was furnished except for one week, and no further agreement with respect to compensation was made. Nothing more was said about the matter until just prior to the first of September, about the time of the taking-effect of defendants’ co-partnership, when plaintiff notified Snyder, who was afterwards manager of the co-partnership, that her services were worth, and she should expect, ten dollars per week. He did not agree thereto nor dissent therefrom, and under these circumstances, we are of opinion that it was proper for her to show the reasonable value of the services rendered, and for the court to submit the question of such reasonable value to the jury, as it did. By reference to the statement sued on, it will be observed that for no week did she charge to exceed ten dollars, and many weeks less than that amount, as appeared to be the reasonable value of her services for the amount of labor performed in cooking for a greater or less number of people, as perchance were entertained at the hotel, and the jury did not allow her more than she charged for the time from September 1st to November 6th, the period involved in this suit. It is proper to say that the court did not submit to the jury at all the services rendered for Snyder prior to September 1st. The only issues submitted were whether defendants were partners from and after September 1st, and whether plaintiff performed services for the co-partnership after September 1st and prior to November 6th, and if so, the reasonable value of such services. All of which issues were properly, and we think justly, answered by the jury.

We are of the opinion that the learned judge did not err on the trial. The judgment was for the right party and should be affirmed. It is so ordered.

Bland, P. J., and Goode, J., concur.'