23 Mo. App. 277 | Mo. Ct. App. | 1886
delivered the opinion of the court.
Suit was commenced before a justice of the peace on an open account, as follows:
*279 “ St. Louis, .July 31, 1885.
“Fred. AMemeyer to Joseph. Wehringer, Dr.
For services rendered as hired hand from March 3, 1882, to July 4, 1885, at $15 per month......$680 00
Credit by cash................................. 442 50
$187 50
The plaintiff had judgment for $72.50, from which the defendant appealed to the circuit court, where the plaintiff got a verdict for one hundred dollars. The following entries appear in the bill of exceptions:
“Be it remembered, that on the trial of above cause following proceedings were had, to-wit: Plaintiff stated that he did not claim to recover on the account filed with justice, claiming a balance of $187.50, but withdrew said claim, and asked leave to file the following as an amended account, claiming a balance due as two hundred and fifty dollars, to-wit:
“Fred. Ahlemeyer to Joseph Wehringer, Dr.
1883.
March to July, 1885. To 29 months as a common laborer, at $15 per month, amounting to...... .$435 00'
Credit by cash........i....................... 185 00
$250 00
“ And that on this account he claimed abalance due of two hundred dollars, as agreed upon at settlement between parties. * * * •
‘ ‘ It appeared this amended account was filed with the justice of the peace on September 2, 1885, and was sent up by the justice to the circuit court, with the papers in the case, but no mention of it, or of its filing, was made in the transcript of the justice of the peace.”
The second of these entries contradicts the first,
The plaintiff testified that he worked for the defendant, as a gardener, from March, 1883, until July, 1885. That his wages came to four hundred and thirty-five dollars, and he received two hundred and forty-three dollars in all. That in August, 1885, the parties compared their accounts and had a settlement, when it was agreed between them that the defendant owed him a balance of two hundred dollars, after paying him eight dollars at that time, and that this balance yet remained unpaid. The defendant testified to the time of service and wages agreed upon, with some slight variations from the plaintiff’s account. He also testified that at the time of the settlement mentioned, his account showed that the plaintiff ’ s services since their last previous settlement, after deducting lost time, amounted to one hundred and eighty-
The court gave for the plaintiff the following instruction :
“1. The court “instructs the jury that if they find, from the evidence, that plaintiff and defendant on the third day of August, 1885, had a settlement for work and labor done by plaintiff for the defendant, then the plaintiff is entitled to recover from the defendant such amount as the defendant then owed plaintiff, as shown by that settlement, less the amount the plaintiff has received oh such settlement.”
This instruction narrowed down the issue of fact before the jury to the single inquiry, whether the settlement ascertained a balance due from the defendant of two hundred dollars, as testified by the plaintiff, or of nothing whatever, after the payment of eight dollars, as sworn to by the defendant. It is manifest, from the verdict of one hundred dollars in favor of the plaintiff, that the jury wholly ignored the instruction, and set up a ruling of law for themselves. Whether there was, or was not, error in the previous proceedings, the court ought to have set aside this verdict and sustained the motion for a new trial. It could only be in a case where the judgment was most unquestionably for the right party, that an appellate court would permit such a verdict to stand.
All the judges concurring, the judgment is reversed and the cause remanded.