Erdbruegger v. Meier

14 Mo. App. 258, 1883 Mo. App. LEXIS 42

• Court: Missouri Court of Appeals
• Decided: November 6, 1883
• Status: Published

Opinions

Bakewell, J.,

delivered the opinion of the court.

This was an action for a balance of $130, due for extra work in building a dwelling house for defendant.

The answer has three counts. The first is a general denial. The second sets out that the building was to be erected according to certain plans and specifications, and specifies sundry particulars in which the building, as erected, varies from the contract; by reason of all which it is alleged that the house as erected is worth $500 less than the house required by the plans and specifications. The third count sets up a counter-claim for work done by defendant for plaintiff worth $42, for which defendant asks-judgment. The replication denies the hew matter in the answer, says that all the changes were made under the contract by consent of both parties, and denies that the building was lessened in value by all of them, and alleges that defendant accepted the building as complying with the contract, and expressly waived any claim for departure from the specifications. As to the second counter-claim, there is a denial of all allegations in respect to it. A jury was waived, and the court found for plaintiff the sum of $106.50.

The only ground upon which we are asked to reverse the judgment is, that there was not a separate finding on each issue, and on each of the last two counts of the answer.

In support of this view, we are referred to some cases (36 Mo. 215; 45 Mo. 270, and 47 Mo. 243), in which it is held that, where a petition sets out two or more causes of action or subjects of complaint there should be a separate assessment on each count, and a verdict for a gross sum can not be sustained, and furnishes sufficient matter for arrest of judgment on motion.

If there is anything in the objection in the present case, the matter is not properly saved for review.

There is no question as to the merits : and it might fairly be considered in the present case that the general finding for plaintiff should be regarded as an express negative to every plea. The ancient practice is relaxed; and, at a time, and in states where attention to form was more rigidly enforced than it is at present with us, a similar finding has been sustained ; and it has been called an ‘ ‘ affectation of precision ” by Chief Justice Gibson, to arrest the judgment on grounds so purely technical. Strohecker v. Drinkle, 16 S. & R. 39. But, be that as it may, the question could only be raised by motion in arrest. Where the verdict finds only part of the matter in issue, omitting to find either way another material part, that is ground for arresting the judgment. Steph. Plead., note 7. It is an imperfect finding; and that can be taken advantage of only by motion in arrest. Finney v. The State, 9 Mo. 642.

It may be said that “ mistake of the jury ” is one of the statutory grounds for new trial. Rev. Stats., sect. 3704. But the finding of an imperfect verdict, or a neglect to find a verdict on all the issues, is not a mistake of the jury within the meaning of this section.

It has always been held, so far as we know, that a motion in arrest is the proper mode of reaching an imperfect verdict. This being so, it is well settled that the appellate courts will, not review errors to which the attention of the trial court was not properly called.

The judgment is affirmed.

Judge Lewis concurs. Judge Thompson dissents.