Jennemann v. Bucher. of the parties was attempting to arrive at the "book value" of the assets of their concern, and the purchase and sale was to be made on that basis. As before stated, there was an amended motion for a new trial. One of the grounds of that was that material evidence had been discovered by defendant after the end of the trial and after the finding and judgment. That newly discovered evidence, when we examine the affidavit accompanying this amended motion for new trial, is to the effect that while Jenneman was secretary and treasurer of the concern and as such in sole charge of its money transactions, he had paid out moneys of the concern for his private account, for which he should have been charged, and so the value of the stock included, it being claimed that if a new trial was granted defendant would interpose a counterclaim and introduce evidence in support thereof. The court rejected this offer and overruled the motion for new trial and, as we think, in so acting committed no error. Testimony of that kind might have been introduced under a counterclaim but there is no pretence whatever of any counterclaim being interposed here. In point of fact, as we have already stated, the answer as amended was a general denial except as to the fact of the reception of the money. At the trial defendant undertook to prove that he had sold out his stock for a lump sum, irrespective of any appraisement or valuation. This new claim, as well as that made concerning the value of the good will, was directly antagonistic to any such position. Parties are not permitted to blow hot and cold. To avail himself of newly discovered evidence it must appear that it was within the issues. We know of no case in which it has ever been held that newly discovered evidence is a ground for a new trial, when it relates to a matter not included within the issues joined and on trial before the court. Hertel v. Cuba. We are asked to impose ten per cent statutory damages as for a vexatious appeal. We do not think that the case warrants any such action. Finding no reversible error, the judgment of the circuit court is affirmed. Nortoni and Allen, JJ., con cur. ALBERT L. HERTEL, Respondent, v. WILLIAM CUBA, Appellant. St. Louis Court of Appeals. Argued and Submitted November 2, 1914. Opinion Filed December 8, 1914. 1. JUSTICES' COURTS: Sufficiency of Statement. A statement filed in a justice's court, alleging that defendant is indebted to plaintiff for $125 for medical services rendered by plaintiff to a third person at the special request of defendant, and that the services were reasonably worth $125, and praying for judgment for that amount and costs, was sufficient, especially after judgment. 2. PHYSICIANS AND SURGEONS: Services Rendered Third Person: Sufficiency of Evidence. In an action by a physician for medical services rendered defendant's adult son, evidence held sufficient to sustain a finding that the services were rendered under an express promise by defendant, made before their rendition, that he would pay plaintiff for them, and hence it is held that the case was one for the jury. 3. 4. : : Evidence. In an action by a physician for medical services rendered a third person at the request of defendant, a statement filed with an insurance company by the third person, in which, after setting out that he had sustained the injuries for which plaintiff treated him, he stated that he thought he was entitled to his lost wages and doctor's bills, and that such bills amounted to $150, was inadmissible against plaintiff, as also was evidence that the third party had been paid by the insurance company for doctor's bills. : : Instructions. In an action by a physician for medical services rendered a third person at the request of defendant and under a promise by him, made before the services were rendered, that he would pay plaintiff therefor, held that an Hertel v. Cuba. instruction given for plaintiff, submitting his theory to the jury, was free from error. 5. INSTRUCTIONS: Refusal: Covered by Other Instructions. It is not error to refuse an instruction which submits a theory that is fully covered by other instructions given. 6. : Not Supported by Evidence. It is not error to refuse an instruction which submits a theory that is not supported by the evidence. Appeal from St. Louis City Circuit Court.-Hon. Charles Claflin Allen, Judge. AFFIRMED. Adolph R. Grund for appellant. (1) Plaintiff seeks to recover under his petition for services rendered a third person on an implied contract; plaintiff knew that the services to be rendered. were not for the benefit of the defendant, and that defendant was under no legal obligation to pay therefor. Plaintiff cannot predicate a claim against defendant unless defendant expressly promised to pay for them before the services were rendered. Morrell v. Lawrence, 203 Mo. 363. If the contract relied on by plaintiff for a recovery be express it must be so pleaded, but if it is implied, the facts out of which it is claimed to arise must be pleaded. Wetmore v. Grouch, 150 Mo. 671; Wells v. Railroad, 35 Mo. 164; Rankin v. Beal, 68 Mo. App. 325. (2) The court erred in refusing to direct verdict for the defendant at close of plaintiff's case. (a) There is no evidence as to any implied contract. (b) Plaintiff did not make a prima facie case against the defendant. Morrell v. Lawrence, 203 Mo. 363; Crowell v. Donoho, 168 Mo. App. 307. (3) Testimony of J. Langford and the testimony of C. H. Pangey and "Exhibit A" were admissible as part of the res gestae, and as an explanatory fact. 1 Elliott on Evidence, sections 154, 155, 541, 548; Gard Hertel v. Cuba. ner v. Crenshaw, 122 Mo. 79; State to use v. Mason, 112 Mo. 380. (5) Plaintiffs petition was predicated upon an implied promise. Plaintiff's instruction No. 1 was predicated on that petition. There was no evidence introduced by either plaintiff or defendant of an implied contract or facts from which a contract could be implied by law and when there is no evidence to support the verdict, the judgment will be reversed. Howard v. Cohow, 33 Mo. 118; Moore v. Hutchinson, 69 Mo. 429; Flanders v. Green, 50 Mo. App. 371. Jesse T. Friday for respondent. (1) Formal pleadings are not required in justice's court and much latitude is allowed in the statement of a cause of action; it being sufficient, if the statement affords reasonable notice to the adversary of the claim relied on, and operates to bar another suit on the same cause of action. Brewing Company v. Ehlhardt, 139 Mo. App. 129; Guarantee Int. Fix. Co. v. St. Louis American League B. B. Co., 152 Mo. App. 601; Lord & Bushnell Co. v. Texas N. O. R. Co., 155 Mo. App. 175; Mut. Tel. Co. v. Hope, 139 Mo. App. 282; Cardwell v. Connor, 142 Mo. App. 14; Vail v. Rumsey-Sikemeyer Co., 137 Mo. App. 446. Whether plaintiff, in an action in the justice's court, pleaded his cause of action on the quantum meruit or an express contract, is immaterial; he may recover though his pleading be one of quantum meruit and the evidence shows an express contract. Herrick v. Maness, 142 Mo. App. 399; Walker v. Guthrie, 102 Mo. App. 420; Buschmann v. Bray, 68 Mo. App. 8. (2) The court was correct in refusing to direct a verdict for the defendant at the close of plaintiff's case, as plaintiff alleged and proved a valid cause of action. Cases supra cited. (3) Plaintiff's instruction fully and properly covered the case. Weinsberg v. St. Louis Cordage Co., 135 Mo. App. 553; Freeman v. Junge Hertel v. Cuba. Baking Co., 126 Mo. App. 124: Morrell v. Lawrence, 203 Mo. 363. REYNOLDS, P. J.-Plaintiff below, respondent here, commenced an action against defendant, now appellant, before a justice of the peace, filing a written statement in which it is set out that defendant is indebted to plaintiff in the sum of $125 for medical services rendered by plaintiff to one Langford, from June 2, 1910, until on or about September 3, 1910, "at the special instance and request of defendant," and that the services so rendered by plaintiff were reasonably worth the sum of $125. Alleging demand and refusal to pay, plaintiff asks judgment for that amount and costs. We are not advised of the result before the justice, but on appeal to the circuit court and a trial there, plaintiff recovered, from which defendant has duly perfected his appeal. Nine errors are assigned here. The first assignment is that the petition does not state facts sufficient to constitute a cause of action against defendant. We do not think that point is well taken. It is argued that the petition or statement does not contain an averment of an express promise to pay but rests on an implied contract, and that neither has been proven. Morrell v. Lawrence, 203 Mo. 363, 101 S. W. 571, is relied on in support of the contention that where there is no implied promise, there must be an express one, made before the services were rendered. The point urged in that case was that the petition and the facts in the case did not make out an implied promise; that such a promise did not arise on the mere fact that the father called a physician to attend his sick son, a man of mature age. But the court held that there was evidence from which a promise to pay could be implied. It is admitted that the statement here sets 186MoApp13 |