Mulloy v. Mulloy

111 S.W. 843, 131 Mo. App. 654, 1908 Mo. App. LEXIS 486

• Court: Missouri Court of Appeals
• Decided: May 26, 1908
• Status: Published

Opinion

BLAND, P. J.

The petition is in two counts. The first one states that the estate of R. A. Mulloy is indebted to plaintiff in the sum of $797.46, as balance due him for twenty-seven months’ work and labor per-, formed for R. A. Mulloy, at the agreed wage of forty dollars per month. The second count is to recover an alleged balance of $98.60, due on a promissory note (filed with the petition) executed by R. A. Mulloy in liis lifetime and payable to plaintiff. The answer is first, a general denial and, second, four separate counterclaims. The first counterclaim states that plaintiff is indebted to the estate of R. A. Mulloy in the sum of $1,409.34, on account of beer sold and delivered to plaintiff by R. A. Mulloy in his lifetime, an itemized account of which (alleged to have been furnished by plaintiff to defendant) was filed with the answer. The second counterclaim states that plaintiff owes the estate of R. A. Mulloy the sum of $917.18, on account of beer, ice and soda water sold for him by plaintiff as the agent or employee of said R. A. Mulloy in his lifetime, for ■which it is alleged plaintiff never rendered said R. A. Mulloy, or his administratrix any account. An itemized account of the beer, ice, etc., so sold was filed with the answer. The third count is based on a promissory note of plaintiff for $50, dated February 25, 1903, payable to R. A. Mulloy, which note is indorsed with a credit of $3.65, June 26,1898. The fourth counterclaim alleges that plaintiff, after the death of R. A. Mulloy, collected beer accounts due the estate, amounting to the sum of $30. The case was continued at the February term, 1906, to the September term, 1906. At the September term, 1906, after a jury of eighteen men had been qualified to try the issues in the cause, and each party had made his challenges and the list of the twelve .jurors selected to try the cause had been handed to the clerk, plaintiff filed a replication, in which it was alleged, among other things, that on the fifth day of May, 1904, plaintiff and R. A. Mulloy became partnérs in a dramshop and' continued to be partners in said business until the day of R. A. M'ulloy’s death, March ---, 1905, and that the items of beer mentioned in defendant’s first counterclaim were partnership transactions; that no settlement of the partnership had ever been made between plaintiff and said R. A. Mulloy; pleaded payment of the second counterclaim; the statute of limitations as to the third, and denied the fourth one. Defendant moved to strike out the replication and for judgment on the pleadings. These motions were overruled by the court; and on plaintiff’s motion, over the objections of defendant, the court sent the case to a referee. Defendant filed a motion to set aside the order of reference which the court also overruled. The referee heard the evidence, made findings and reported the evidence heard and the findings to the court. Defendant filed numerous exceptions to the report which •the court overruled and entered judgment for plaintiff for the sum of $760.80, as recommended by the referee. Defendant appealed from this judgment.

1. The itemized account filed' with the first counterclaim occupies an entire printed page of the abstract and the itemized account filed with the second counterclaim covers eleven pages of the abstract, and though no books of account were examined at the hearing before the referee, yet it is very apparent that no correct, or approximately correct, finding can be made without the examination of a book or books of account, which the evidence shows were kept by plaintiff. On this showing we are inclined to the opinion that the case was properly referred.

2. The motion to strike out the reply is not copied in the abstracts; if said motion was to strike out the entire reply, the .court did not err in overruling it.

3. The referee heard Patrick Ryan and Mrs. Patrick Ryan, the sister and brother-in-law of plaintiff and of the deceased, and also the evidence of- Louis King. The evidence of these witnesses conduces to show that R. A. Mulloy kept a beer house for the Anheuser-Busch Brewing Company at Monett and one at Pierce City, Missouri, and that plaintiff worked for him two years or more as a hauler and deliverer of beer, ice and soda water and his services were reasonably worth forty dollars per month. One of the witnesses also testified to an admission of R. A. Mulloy, that he was paying-plaintiff forty dollars a month for his work. Defendant offered page 64 of some book of account, containing about 500 pages, which it appears plaintiff kept, to show, as stated, by plaintiff’s own book account that he was indebted to the estate in the sum of $1,512.74 on the beer account. Plaintiff objected to this particular page unless defendant would agree to offer the entire book. Defendant declined to read the entire book of accounts, the referee sustained the objection and the book was thus kept out of evidence. The book, as shown by defendant’s evidence was kept by plaintiff and purported to be an itemized statement of tbe account between R. A. Mulloy, tbe deceased, and plaintiff arid was placed in the bands of defendant’s attorney by plaintiff as an exhibit of the true condition of tbe account, therefore, it would be manifestly unjust to permit tbe defendant to select a single page of tbe book and offer it in evidence for tbe purpose of showing an admission by plaintiff against bis interest. Tbe book was evidence in its entirety and it would have been improper to admit a part of it. [1 Greene on Evidence (Lewis Ed.), sec. 201; Todd v. Terry, 26 Mo. App. 598.]

4. Defendant offered two drafts in evidence, one drawm by Peter Mulloy in favor of R. A. Mulloy for $700, dated October 10, 1904, and paid October 18, 1904; tbe other for $100, dated October 24, 1904, drawn by Peter Mulloy in favor of R. A. Mulloy and was paid October 27, 1904. Tbe referee applied these checks on tbe second counterclaim and found there was no evidence whatever in support of tbe first one. It was agreed by both parties that tbe notes sued on in tbe second count of tbe petition and tbe one sued on in tbe third counterclaim should be off-set one against tbe other.

6. On tbe fourth counterclaim tbe referee found plaintiff indebted to defendant in the sum of sixteen dollars on account of beer accounts collected by plaintiff after tbe death of R. A. Mulloy. This amount and tbe balance found due defendant on tbe second counterclaim were deducted by tbe referee from tbe amount ($760.80) found to be due plaintiff on tbe first count in bis petition, and judgment was recommended for the balance, ,$628.77, and rendered in plaintiff's favor for this amount. We think tbe evidence supports the finding of tbe referee and discovering no reversible error in tbe proceeding, tbe judgment is affirmed.

All concur.