STATEMENT BY THE COURT.
The plaintiff is the county surveyor of Pike county and was serving his third term, when he brought this suit against the county for the reasonable value of the use of one of the rooms of his house as a public office, for eight years and four months, alleged to be $505; for the installation of a telephone at said residence two years and two months, $28; and for special telephone messages, $1.30. Th answer was a general denial and the plea of the Statutes of Limitations for five years as to the indebtedness existing beyond that period, before suit.
[535]*535Plaintiff, whose business is that of dairyman and milk dealer, stated that be used one of tbe rooms of bis residence, about one-half mile from town, for bis office as county surveyor; that persons who bad official business with him called and were received there, that tbe room in question was also used by himself and family as the sitting and receiving room for themselves and social callers, that be caused a telephone to be placed in said room, for which be paid the rate charged in residences, and which was used for official purposes and also for tbe convenience of himself, bis family, and other persons. That be bad so located bis office because tbe county court bad failed at bis request to provide bim suitable office and furnishings. That tbe reasonable rental value of tbe room in bis residence was five dollars per month, amounting to the sum claimed therefor in bis petition; and be testified to tbe same effect concerning tbe items claimed for telephone service, and to tbe last item of special messages be claimed to have spent forty-five cents.
For tbe defendant, Mr. Eobertson, member of tbe county court, testified that plaintiff never mentioned to bim any bill for office rent and never at any time demanded any room wherein to keep bis office, and tbe court never provided for bim in that respect. This witness was a member of tbe county court during tbe whole time embraced in plaintiff’s claims.
Mr, McCune, who bad been presiding judge of tbe county court for three years, testified that tbe plaintiff made no demand for rent of office during bis incumbency, and further testified, to-wit:
“Q. State if you were willing at any time to furnish an office for bim, if be wanted it? A. Yes, sir.
“Q. In tbe courthouse? A. Yes, sir.
“Q. Did be ever make any demand on you, or any member of tbe county court as far as von know, to furnish bim an office? A. No, sir.”
[536]*536This witness further stated that there were two rooms in the courthouse available for that purpose. Defendant had judgment and plaintiff'appealed.
OPINION.
I.
BOND, J.
■county ^ office^and Telephone. (After stating the facts as above).—
The court instructed the jury that it was the duty of the county court to provide an officé room for the use of plaintiff as county surveyor, without any request on his part, and that in case of its failure to do so, plaintiff could recover the reasonable value of the use of one of the rooms of his residence as an office. And that a telephone was a necessary equipment of such an office, and that the expense of installing the same could be recovered by the plaintiff (upon failure of the county court to provide the same) if the jury believed the plaintiff had installed this instrument in the room of his residence where his office was kept, for the discharge of his official duties.
The testimony in this case clearly presented an alternative view of what is expressed by the foregoing-instructions. Upon that conflicting evidence the jury found for the defendant and hence conversely to the theory of the plaintiff’s instructions. Necessarily that verdict leaves nothing for review. The instructions given for plaintiff submitted to the fullest extent the ■doctrine announced in the two recent cases. [Ewing v. Vernon County, 216 Mo. 681; Motley v. Pike County, 233 Mo. 42.]
In the former case the point in judgment was the right of the recorder of deeds to recover a reasonable ■outlay made by him for janitor service in his office, which “was denied to the office,” although it had been previously furnished by the county court as a part •of its system of maintaining that service in the courthouse where the recorder’s office was located, and [537]*537which, was continued in the remainder of the building. [Ewing v. Vernon County, 216 Mo. 687.] It was held, that the recorder could recover the reasonable expense of the service the county had deprived him,, as the record showed that it was'not “caused by petulant, unreasonable, or a capricious conduct” on his part, hut was expended for a matter necessary to the “keep of his office.”
It is apparent, that ease is wholly unlike the present in its facts, and that the ruling is not to the point. Here the issue was sharply drawn whether the plaintiff desired an office in the county courthouse; where,, or in some other suitable place, it was the duty of the-county court to provide him proper quarters- and necessary appliances for the discharge of his public duties. The jury evidently found that the plaintiff óf his own volition and for his own convenience, located his office in his dwelling and failed to avail himself of his right to require the county court to make other provisions for the location and keep of an office for him.
The case of Motley v. Pike County also correctly ruled that the county court must provide the public-office of judge of the probate court with adequate janitor and telephone services under the statute (R. S. 1909, sec. 4065), requiring the county to pay for the “other necessaries” of a probate court. That case decided that items embracing these expenses, must he allowed to the probate judge. But it is plain that ruling does not apply to the facts in the plaintiff’s-case. In the case at bar, in addition to choosing his-residence as a place of business, the plaintiff installed a family telephone at the different rate charged to-resident users, this he said was used “by his family, the neighbors, and other people that came there.”' It might have been well found by the jury, that it was necessary for the dairy business that the plaintiff carried on and out of which he says he had to make his living. Plaintiff was not entitled to be reimbursed for [538]*538the expense of his telephone if it was -incurred for the uses of his private business or the convenience of his family and neighbors. There is testimony of the plaintiff that on two occasions he expended twenty and twenty-five cents respectively for telephoning as to a matter connected with his office, and that this amount of forty-five cents had not been returned to him by the court. But this testimony was a matter addressed to the credence of the jury, whose verdict for the defendant concludes the matter.
jnstructions. II. The learned counsel for appellant insist the court erred in giving instructions numbered 1, 2 and 3 for the defendant. We think not. The first was merely the alternative view of the evi¿61106 submitted by the first instruction given for plaintiff. The second, was a correct statement of the law that the book of the “record of surveys” should be deposited in the recorder’s office and subject to public inspection. The third only defined the effect of the Statute of Limitations.
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STATEMENT BY THE COURT.
The plaintiff is the county surveyor of Pike county and was serving his third term, when he brought this suit against the county for the reasonable value of the use of one of the rooms of his house as a public office, for eight years and four months, alleged to be $505; for the installation of a telephone at said residence two years and two months, $28; and for special telephone messages, $1.30. Th answer was a general denial and the plea of the Statutes of Limitations for five years as to the indebtedness existing beyond that period, before suit.
[535]*535Plaintiff, whose business is that of dairyman and milk dealer, stated that be used one of tbe rooms of bis residence, about one-half mile from town, for bis office as county surveyor; that persons who bad official business with him called and were received there, that tbe room in question was also used by himself and family as the sitting and receiving room for themselves and social callers, that be caused a telephone to be placed in said room, for which be paid the rate charged in residences, and which was used for official purposes and also for tbe convenience of himself, bis family, and other persons. That be bad so located bis office because tbe county court bad failed at bis request to provide bim suitable office and furnishings. That tbe reasonable rental value of tbe room in bis residence was five dollars per month, amounting to the sum claimed therefor in bis petition; and be testified to tbe same effect concerning tbe items claimed for telephone service, and to tbe last item of special messages be claimed to have spent forty-five cents.
For tbe defendant, Mr. Eobertson, member of tbe county court, testified that plaintiff never mentioned to bim any bill for office rent and never at any time demanded any room wherein to keep bis office, and tbe court never provided for bim in that respect. This witness was a member of tbe county court during tbe whole time embraced in plaintiff’s claims.
Mr, McCune, who bad been presiding judge of tbe county court for three years, testified that tbe plaintiff made no demand for rent of office during bis incumbency, and further testified, to-wit:
“Q. State if you were willing at any time to furnish an office for bim, if be wanted it? A. Yes, sir.
“Q. In tbe courthouse? A. Yes, sir.
“Q. Did be ever make any demand on you, or any member of tbe county court as far as von know, to furnish bim an office? A. No, sir.”
[536]*536This witness further stated that there were two rooms in the courthouse available for that purpose. Defendant had judgment and plaintiff'appealed.
OPINION.
I.
BOND, J.
■county ^ office^and Telephone. (After stating the facts as above).—
The court instructed the jury that it was the duty of the county court to provide an officé room for the use of plaintiff as county surveyor, without any request on his part, and that in case of its failure to do so, plaintiff could recover the reasonable value of the use of one of the rooms of his residence as an office. And that a telephone was a necessary equipment of such an office, and that the expense of installing the same could be recovered by the plaintiff (upon failure of the county court to provide the same) if the jury believed the plaintiff had installed this instrument in the room of his residence where his office was kept, for the discharge of his official duties.
The testimony in this case clearly presented an alternative view of what is expressed by the foregoing-instructions. Upon that conflicting evidence the jury found for the defendant and hence conversely to the theory of the plaintiff’s instructions. Necessarily that verdict leaves nothing for review. The instructions given for plaintiff submitted to the fullest extent the ■doctrine announced in the two recent cases. [Ewing v. Vernon County, 216 Mo. 681; Motley v. Pike County, 233 Mo. 42.]
In the former case the point in judgment was the right of the recorder of deeds to recover a reasonable ■outlay made by him for janitor service in his office, which “was denied to the office,” although it had been previously furnished by the county court as a part •of its system of maintaining that service in the courthouse where the recorder’s office was located, and [537]*537which, was continued in the remainder of the building. [Ewing v. Vernon County, 216 Mo. 687.] It was held, that the recorder could recover the reasonable expense of the service the county had deprived him,, as the record showed that it was'not “caused by petulant, unreasonable, or a capricious conduct” on his part, hut was expended for a matter necessary to the “keep of his office.”
It is apparent, that ease is wholly unlike the present in its facts, and that the ruling is not to the point. Here the issue was sharply drawn whether the plaintiff desired an office in the county courthouse; where,, or in some other suitable place, it was the duty of the-county court to provide him proper quarters- and necessary appliances for the discharge of his public duties. The jury evidently found that the plaintiff óf his own volition and for his own convenience, located his office in his dwelling and failed to avail himself of his right to require the county court to make other provisions for the location and keep of an office for him.
The case of Motley v. Pike County also correctly ruled that the county court must provide the public-office of judge of the probate court with adequate janitor and telephone services under the statute (R. S. 1909, sec. 4065), requiring the county to pay for the “other necessaries” of a probate court. That case decided that items embracing these expenses, must he allowed to the probate judge. But it is plain that ruling does not apply to the facts in the plaintiff’s-case. In the case at bar, in addition to choosing his-residence as a place of business, the plaintiff installed a family telephone at the different rate charged to-resident users, this he said was used “by his family, the neighbors, and other people that came there.”' It might have been well found by the jury, that it was necessary for the dairy business that the plaintiff carried on and out of which he says he had to make his living. Plaintiff was not entitled to be reimbursed for [538]*538the expense of his telephone if it was -incurred for the uses of his private business or the convenience of his family and neighbors. There is testimony of the plaintiff that on two occasions he expended twenty and twenty-five cents respectively for telephoning as to a matter connected with his office, and that this amount of forty-five cents had not been returned to him by the court. But this testimony was a matter addressed to the credence of the jury, whose verdict for the defendant concludes the matter.
jnstructions. II. The learned counsel for appellant insist the court erred in giving instructions numbered 1, 2 and 3 for the defendant. We think not. The first was merely the alternative view of the evi¿61106 submitted by the first instruction given for plaintiff. The second, was a correct statement of the law that the book of the “record of surveys” should be deposited in the recorder’s office and subject to public inspection. The third only defined the effect of the Statute of Limitations.
Neither is there any merit in the claim that the appellant was entitled to his refused instructions. These were mere iterations of what was contained in the full and complete instructions which the court had given at Ms request.
There being no reversible error in the case the judgement is affirmed.
Lamm and Graves, JJconcur, Woodson, P. J., dissents in separate opinion.