Opinion
No. 27984.
July 18, 1950.
APPEAL FROM THE CIRCUIT COURT, FRANKLIN COUNTY, RANSOM A. BREUER, J.
Frank W. Jenny, Union, and Leo A. Politte, Raymond S. Davis, and Jos. T. Davis, all of Washington, for appellant.
R. G. Church, St. Louis, and Joseph T. Tate, Owensville, for respondent.
This is an action in two counts, the first upon an alleged express contract of employment, and the second for the reasonable value of goods and merchandise sold and delivered by plaintiff to defendant.
Along with its answer defendant interposed a counterclaim in four counts.
From a judgment in favor of plaintiff on his cause of action for the sum of $6,643.34, and also in favor of plaintiff on defendant's counterclaim, defendant appealed to the Supreme Court, which thereafter sustained plaintiff's motion to transfer, and ordered that the cause be transferred here.
So far as the personal equation is concerned, the controversy is between plaintiff, Ray H. Schmidt, and Joseph T. Davis, the promoter and organizer, and later the principal owner, president, and chief executive officer, of defendant, Morival Farms, Inc.
Plaintiff and his father, Otto Schmidt, were the owners of a farm of some 500 acres lying in the Missouri River bottom near Labadie, in Franklin County, Missouri. During the summer of 1945 Davis entered into negotiations with the Schmidts relative to the purchase of their farm, and on August 29, 1945, he wrote plaintiff a letter in which he proposed certain specific terms upon which he would be willing to compensate plaintiff for staying on the farm and acting as manager in the event the sale was consummated.
At about the same time Davis was also considering the purchase of what is referred to in the evidence as the Dorman farm consisting of some 120 acres of hill land adjoining the Schmidts' property.
The plan which Davis had in mind was to form a corporation to take title to the land, and on October 25, 1945, defendant, Morival Farms, Inc., was duly incorporated. The word "Morival" is a combined form derived from the abbreviations of the three words "Missouri River Valley". Davis owned all of the stock except for certain qualifying shares which were issued to the other incorporators and officers including plaintiff, and had himself elected to the offices of president and treasurer. Plaintiff was vice-president of the corporation until his resignation in January, 1947.
The deal for the sale of the farm to defendant corporation was finally completed, and possession was delivered on March 1, 1946, at which time plaintiff assumed the duties of manager. There is no contention that he was ever formally employed by the corporation itself, but instead plaintiff's theory is that the corporation, by accepting his services under all the circumstances of the case, ratified and affirmed what Davis had proposed in his letter of August 29, 1945, while negotiating for the purchase of the farm, and while acting as promoter of the proposed corporation.
Plaintiff continued to serve as manager of the farm until February 28, 1947, when he was discharged by Davis acting on behalf of defendant corporation. The present action was instituted on July 25, 1947.
In the first count of his petition plaintiff set out the terms upon which Davis had offered to employ him; his subsequent employment by defendant corporation on March 1, 1946, in alleged accordance with the proposal theretofore made by Davis; the rendition of services under such employment for the period of one year; and defendant's failure and refusal to compensate him according to the terms of his alleged contract. He prayed judgment under the first count of his petition for the sum of $6,767.85, with interest from March 1, 1947.
In the second count of his petition plaintiff alleged that during the year he served as manager of the farm he had sold and delivered to defendant certain enumerated items of feedstuff, fertilizer, oil, gasoline, lumber, paint, nails, wire, and the like for which defendant had also failed and refused to pay. He prayed judgment under the second count of his petition for the sum of $1,102.95, with interest from March 1, 1947.
Defendant answered, denying that Davis had offered to have it (the corporation) employ plaintiff as manager of its farm, and further denying that Davis had possessed authority to negotiate with plaintiff on behalf of the corporation, or that any agreement he may have made with plaintiff was ever approved or ratified by the corporation.
Defendant admitted that plaintiff had assumed the duties of manager of its farm on March 1, 1946, but averred that there was no express agreement in regard to his compensation, and that he was merely to be paid a reasonable compensation. It was alleged, however, that plaintiff, after entering upon the duties of manager, had wholly failed and refused to perform his duties in many specific particulars, with the result that there was nothing due him from defendant under the first count as reasonable compensation.
As for the second count, the defense was, in substance, that the items sold and delivered by plaintiff to defendant were not reasonably of the value claimed in the petition.
In the first count of its counterclaim defendant sought an accounting from plaintiff for his alleged use of certain of its equipment in connection with the prosecution of his private business, and also for the earnings he had derived from his private business. while he was allegedly obligated to devote his entire time to defendant's business. There was no prayer under such first count for any specific sum of money, but only that plaintiff be required to account.
In the second count defendant prayed judgment against plaintiff with triple damages because of his sale to defendant of certain machinery and equipment for sums in alleged excess of the actual value of such machinery and equipment, and in alleged excess of ceiling prices placed upon such machinery and equipment by the Office of Price Administration. Judgment was prayed under this count for the total sum of $10,000.
In the third count defendant sought to recover for certain alleged overcharges made by plaintiff for cultivating the land and planting crops in 1945, and for corn sold it by plaintiff in alleged excess of the ceiling price. Defendant prayed judgment under the third count for the sum of $485.67.
In the fourth count recovery was sought for alleged overcharges in connection with plaintiff's sale of hogs to defendant, as well as in connection with his purchase of hogs on its behalf, all in excess of the ceiling price. The judgment prayed under the fourth count was for the sum of $415.
Thereafter the court sustained defendant's motion for a reference of the cause, and appointed Honorable G. C. Beckham as referee to hear the evidence for the respective parties and to report to the court as to the law and the facts.
The referee found for plaintiff under both counts of his petition, and recommended that he recover $4,869.12 under the first count, and $1,102.95 under the second count, with interest in each instance from March 1, 1947. It was suggested, however, that because of a mathematical error which had occurred in connection with payments previously made to plaintiff, defendant should be allowed a credit of $100 on whatever judgment might be rendered in the cause. As for the counterclaim, the referee recommended that defendant be denied recovery on each and every one of the four counts.
Upon the making of such report, defendant filed exceptions to the referee's findings both on plaintiff's causes of action and also on its counterclaim.
The court thereafter overruled the exceptions, and entered judgment for plaintiff on his causes of action for the aggregate amount, including interest, of $6,643.34, and also for plaintiff, and against defendant, on the latter's counterclaim.
A motion for a new trial was filed and overruled, and defendant's appeal has followed.
The fact that the Supreme Court has transferred the case to this court would ordinarily end all inquiry into our jurisdiction. Nevertheless our jurisdiction depends, in the last analysis, upon the existence of some jurisdictional fact as defined by the Constitution and laws enacted pursuant thereto; and if, on the face of the record, it affirmatively appears that the case is one within the exclusive appellate jurisdiction of the Supreme Court, no mistaken act of transfer can impart a jurisdiction that we are forbidden to acquire. Odom v. Langston, 237 Mo.App. 721, 170 S.W.2d 589, Id., 351 Mo. 609, 173 S.W.2d 826.
That this is so is something that the Supreme Court has always recognized, and it has plainly and distinctly held on several occasions that its preliminary rulings on the question of where appellate jurisdiction lies are not to be taken as res adjudicata so as to foreclose any further review of the matter if doubt reoccurs upon the consideration of the case on the merits. Odom v. Langston, supra; Bowles v. Troll, 262 Mo. 377, 171 S.W. 326; State ex rel. Simmons v. American Surety Co. of New York, Mo.Sup., 210 S.W. 428.
Indeed, even though, as in the present instance, the Supreme Court may have transferred a case to a Court of Appeals which thereupon proceeds to assume jurisdiction, that Court, if it afterwards finds that it was wrong in its transfer, will have no recourse but to quash the Court of Appeals' opinion and then itself exercise the jurisdiction which it alone possesses. State ex rel. Brown v. Hughes, 345 Mo. 958, 137 S.W.2d 544. As a matter of fact, if the Court of Appeals believes from its own study of the case that the Supreme Court, in ordering the transfer, has inadvertently overlooked certain facts in the record compelling a contrary result, it is its duty, not to regard the transfer as a conclusive determination, but to retransfer the case to the Supreme Court so that the question may be reexamined and the error corrected, if it is found that error was in truth committed. Odom v. Langston, supra.
The whole question in this case is whether the amount in dispute, exclusive of costs, exceeds the sum of $7,500. If so, the Supreme Court has exclusive appellate jurisdiction. Constitution of 1945, Art. V, Sec. 3, Mo.R.S.A. If not, jurisdiction is in this court, and the case was properly transferred here. Constitution of 1945, Art. V, Sec. 13, Mo.R.S.A.
Plaintiff's motion to transfer, which the Supreme Court sustained, was based upon the theory that the amount in dispute was the sum of $6,643.34, which was the amount of the judgment awarded plaintiff on the two counts of his petition. Defendant's suggestions in opposition proceeded on the theory that the amount in dispute was not the sum for which plaintiff had recovered judgment on the two counts of his petition, but instead was the sum originally claimed under the two counts of his petition, namely, $7,870.80.
If plaintiff's motion to transfer, as put in issue by defendant's suggestions in opposition, had reflected the whole situation with respect to the amount in dispute on the appeal, plaintiff would have been entirely correct, and the order transferring the case to this court could not have been open to any serious question. The trouble is, however, that the motion did not reflect the whole situation, since it entirely disregarded so much of the judgment as was rendered on the counterclaim.
In a case where defendant interposes a counterclaim, and the situation is such that both plaintiff and defendant may recover against each other simultaneously on their respective causes of action, the claims of both parties are to be considered together in determining the amount in dispute on an appeal from any judgment that may be rendered. Wilson v. Russler, 162 Mo. 565, 63 S.W. 370.
In the case at bar defendant has appealed from the entire judgment, and complains, not only of plaintiff's recovery on the causes of action set up in the two counts of his petition, but also of the decision in plaintiff's favor on the four counts of the counterclaim. Consequently the amount in dispute is not limited to the judgment in plaintiff's favor on the two counts of his petition, but also embraces the amount sued for in the counterclaim as to which defendant was denied recovery. In other words, the amount in dispute is not confined to the sum of $6,643.34 for which plaintiff has had judgment on the two counts of his petition, but also includes the sums of $10,000, $485.67, and $415, which defendant unavailingly sought to recover under the second, third, and fourth counts of its counterclaim. It will be recalled that defendant asked for no specific money judgment under the first count of its counterclaim. Adding all these figures together, the total amount in dispute on this appeal would therefore appear to be the sum of $17,544.01, which would mean that appellate jurisdiction rests exclusively in the Supreme Court.
We confess a very great reluctance to question our jurisdiction after the case has been transferred to us, but being convinced of our want of jurisdiction, we would be remiss in our duty if we did not retransfer the case to the Supreme Court so that the matter can be settled once and for all before undertaking to dispose of the case on the merits. Especially is this so where the Supreme Court has itself expressly said that its action in transferring a case to a Court of Appeals is not to be regarded as res adjudicata. Odom v. Langston, supra.
The Commissioner accordingly recommends that the case be retransferred to the Supreme Court.
The foregoing opinion of BENNICK, C., is adopted as the opinion of the court.
The case is, accordingly, retransferred to the Supreme Court.
ANDERSON, P. J., and HUGHES and McCULLEN, JJ., concur.