170 Mo. 310 | Mo. | 1902
This is a suit upon a contractor’s bond, in which plaintiff seeks to recover a judgment for $343.71, against the contractor and the sureties on the bond, and the contractor counterclaims for $366.70 extras. The plaintiff had judgment in the circuit court for $359.12, and the defendants appealed to the St. Louis Court of Appeals. .That court transferred the case to this court on the ground that appellate jurisdiction is vested in this court, because the trial court had denied the defendants a trial by jury as guaranteed by section 28, article 2, Constitution of Missouri of 1875. [Tinsley v. Kemery, 83 Mo. App. 94.] That ruling was based upon the rule laid down in Ice Co. v. Tamm, 138 Mo. 385.
The petition is bottomed upon an account stated, between the plaintiff and the contractor, growing out of a contract made by Kemery to build a house for the plaintiff, under which the plaintiff had paid $343.71 in excess of the contract price. An itemized statement was filed with the amended petition setting out the contract price, and the extras, and also all the payments made by the plaintiff, and showing the balance claimed. The contractor and sureties answered separately. The answer of the contractor is a general denial, special defenses, and a counterclaim for $366.70, with a bill of .items for extras amounting to that sum. The first special defense is that the bond sued on was not executed until long after the work had been begun, and that the bond was without consideration. The second special defense is substantially the same as the first. The third
The answer of the sureties is a general denial, with seven special defenses, to-wit: first, that there is no consideration for the bond and that it was executed long after the contract it secures was made and the work begun' thereunder; second, that the contract was changed and the work done differently from- that contemplated by the plans and specifications, without the consent of the sureties; third,. that the plaintiff paid the contractor before the part payments were due hy the terms of the contract; fourth, that the plaintiff did not insure the building as required hy the contract; fifth, that by the terms of the contract the owner reserved a right to make alterations, additions or omissions in the work, which the contractor was obliged to carry out without its affecting the contract, but that the value of such alterations should he agreed upon in writing between the owner and the contractor before they should be made, and that alterations were made hut no such written agreement as to the value thereof was so made;.sixth, that it was agreed between the sureties and the plaintiff that one Baird should not be employed as architect or superintendent or have anything to do with the work or contract and that the plaintiff violated the agreement and permitted Baird to act as superintendent. The reply sets up that the contract provided that changes might be made in the work contemplated by the contract, and extra work done, as the parties might agree upon in writing and that no changes were made or extra work done except such as the parties agreed upon in writing.
The record shows that these answers were filed at
The record then shows that on May 21, 1898, the referee filed his report stating in full the account between the owner and contractor. The report of the referee shows that the contract price for the building,' as called for by the plans and specifications, was $2,218, and that the plaintiff paid the contractor $2,759.50, and that the contractor also did work and furnished materials, “not contracted for under the original contract,” consisting of twenty-eight items, aggregating $197.79.
On May 26, 1898, during the regular May term, 1898, the defendants filed their exceptions to the report of the referee, asserting, inter alia, that the court “had no authority under the pleadings in this cause to refer any part of said cause to said referee."
On the next day, November 18,1898, at the November term, the defendants moved the court, “To strike out so much of its findings as is in anyway different from the report of the referee, and objects to the court determining any of the issues in the case, and requests that all issues not submitted to the referee be submitted to a jury, and that all issues and findings not submitted to said referee be submitted to a jury, and these defendants ask and request a jury trial of all said issues, and refuse to waive their right in said respect.” On the same day the court overruled the said motion, and after modifying the referee’s report by striking out three items aggregating $15.41, complained of by the defendants, and held by the court to be entirely disconnected with the contract, the court found that all extras were agreed upon by the parties, as also the value thereof, and entered judgment for the plaintiff for $359.12. On the same day the defendants filed a motion for new trial, alleging the usual grounds, and winding up with the ground that the court- erred “in placing the burden of proof upon the defendants, and erred in refusing to permit defendants to submit to the jury the issues raised by their answer, and erred in refusing to permit defendants to introduce evidence in support of said issues,"and erred in only submitting to the jury one issue raised by defendants’ answer, erred in finding any
I.
The propriety of the order of reference is not open to review. The case was referred on December 14, 1897, during the November term of the court. So far as is disclosed by what purports to be a full transcript, the defendants filed no bill of exceptions during the November term, 1897, preserving any exception to this ruling of the court. The final bill of exceptions filed May 15, 1899, upon an extension of time after the November term, 1898, when the judgment was entered, recites that the defendants excepted to that ruling, but such a recital in the final bill of exceptions, filed about a year after the ruling complained of was made, is of no avail. The defendants should have preserved the point by filing a bill of exceptions during the term at which the ruling was made, and then have embodied the term bill of exceptions in the final bill of exceptions. Failing so to do the exception was not properly preserved, and, hence, the ruling is not open to review. [Smith v. Baer, 166 Mo. l. c. 401, and cases cited.]
II.
The serious question in the case is the action of the court in submitting to the jury only one issue and in finding the other issues itself. These matters are properly preserved because the bill of exceptions relating thereto was filed within proper time.
After the coming in of the referee’s report stating the account between the owner and contractor, the record recites that the court "elected to submit to the jury
It will he observed the order of reference was not. general, hut limited the referee to stating an account between the parties, and required him to find separately the items which were not covered by the contract,, which the referee strictly adhered to. The- case then-stood upon the docket with other issues joined, some of which if found for the defendants would excuse the sureties at any rate. Of these issues the court submitted one to a jury and found one itself. That is, it submitted to the jury the issue as to whether the bond had been signed “at the time of signing of the contract, ’ ’ and it decided itself the issue as to- whether the parties to the contract had agreed in writing as to the changes in the work and the value thereof. The other-issues were not found by either the court or jury.
This is an action at law, and while in proper cases-it is within the power of the trial court to refer the whole case or only certain issues in a case, as to- state an account, to a referee, nevertheless as to- the issues not so-referred either party is entitled to- a trial by jury if he demands it. The fact that a portion of the issues have-been found by a referee, does not confer power upon the court to try the -remaining issues, without a jury,, over the objection of either party to the suit. The trial court treated this case as one in equity and “elected”' to take the advice of a jury as to one question of fact. But the court overlooked the fact that the case is not one-in equity but is an action at law upon a contractor’s, bond. Section 28 of article 2, Constitution of Missouri 1875, provides that: “The right of trial by jury, as heretofore enjoyed, shall remain inviolate.” This court.
It is therefore competent for a court, in a proper case, to refer a case generally or only specially. If it is only referred in part, and is an action at law, either party is entitled to a trial by jury as to such issues as have not been referred. This right was denied to these defendants in this case, and, therefore, the judgment of the trial court must be reversed and the cause remanded to that court, with directions to accord to the defendants, a trial by jury, as to all the issues joined, except such as were referred to and reported by the referee.