Goff v. Hines. Co., 172 Mo. App. 299; Newton v. Railway Co., 168 No brief for respondent. COX, P. J.-This action was begun before a justice of the peace for services rendered by plaintiff as night watchman to guard freight and other property from October 13, 1917 to February 1, 1918, for which it is claimed there was a balance due of $107.50. Judgment by default before the justice; appeal to the circuit court and on trial de novo in that court a verdict for plaintiff for $107.50 was returned; judgment entered thereon against appellant and he has appealed. The first contention of appellant Walker D. Hines, Director General, is that he was not sued and hence no judgment can be rendered against him. This contention is based on the allegations in the body of the statement filed before the justice of the peace and the Goff v. Hines. form of the verdict returned at the trial in the circuit court. The appellant has printed-in his abstract of record the body of the statement only. The caption of the statement is not printed. In the body of plaintiff's statement, the names of neither plaintiff nor defendant appear. The plaintiff is referred to as "plaintiff" and the defendant is referred to as "defendant" and as "railroad" and as "said railroad" but neither the name of the railroad nor the name of Walker D. Hines, Director General, anywhere appears. The trial court treated the case as a suit against Walker D. Hines, Director General, and to remove all doubt as to who were the parties to the suit, we have secured from the circuit clerk of Pemiscot county a certified copy of the statement of the cause of action filed before the Justice of the Peace and it has the following caption. "A. L. GOFF, plaintiff, V. WALKER D. HINES, Director General of ST. LOUIS-SAN FRANCISCO RAILROAD, a corporation, Defendant. The designation of the parties in the caption of the, statement is sufficient. It is not necessary that the names of the parties be repeated in the body of the pleading. [R. S. 1919, sec. 1220.] The next contention is that the verdict will not support the judgment against the appellant. The verdict is in the following form: “A. L. Goff, plaintiff v. ST. LOUIS & SAN FRANCISCO Ry. Co., defendant. "We, the jury, find the issues for the plaintiff in the sum of $107.50. J. B. BUCKLEY, Foreman." Appellant now contends that the verdict was rendered against the railroad company and not against him as Director General and the court therefore could not enter judgment against him on the verdict. The court treated that part of the verdict which gave the title of the cause as surplusage. The verdict was copied Goff v. Hines. in the judgment with that omitted and we think he was fully warranted in doing so. While it is true that the verdict is the basis and the only basis for the judgment and the judgment must follow the verdict and the verdict must be clear and unambiguous so that a judgment may be written upon it without a resort to inference or to construction. [Newton v. Railroad, 168 Mo. App. 199, 153 S. W. 495; Singleton v. Kansas City Baseball & Exposition Co., 172 Mo. App. 299, 157 S. W. 964; Haumueller v. Ackermann, 130 Mo. App. 387, 109 S. W. 857; Hughey v. Eysell, 167 Mo. App. 563, 152 S. W. 434.] It is also true that if from a consideration of the whole of the record proper, if the appeal is taken without motions for new trial and in arrest of judgment being filed or if such motions are filed and passed on by the trial court, then from the whole record, the meaning of the jury can be made clear and the judg ment is based on what the jury actually found, it will be upheld. Hayes v. Hogan, 273 Mo. 1, 27, 200 S. W. 286; Grain Co. v. Britton, 202 Mo. App. 591, 209 S. W. 333.] The case being tried as shown by the statement filed before the Justice of the Peace was A. L. Goff, plaintiff, v. Walker D. Hines, Director General of St. Louis & San Francisco Railway Company, a corporation, defendant. The defense was made by the Director General. He was in charge operating the railroad and the jury evidently understood that the case being tried was against the railroad company though technically speaking it was not. There was but one defendant and it is clear that the jury actually found in favor of plaintiff and the body of the verdict so states. This could mean but one thing and that is that the jury found that the defendant was indebted to plaintiff in the sum found, to-wit, $107.50. The trial court had no difficulty in determining what the jury had found and entered judgment against the defendant in the action and we Roark v. Pullam. think that action was warranted by the verdict as returned. The next contention is that the verdict is excessive. This is based on the fact that the services for which compensation is claimed extended from October 13, 1917, to February 1, 1918, and that the Director General did not take charge of the railroad until December 31, 1917, and therefore a large part of the claim accrued before the Director General took charge and for that part of the services, no judgment could be rendered against the Director General. We do not deem it necessary to pass upon that question in this case for the reason that appellant waived his rights in that regard, if he had any. That point was not made in the trial. No objection was made to testimony showing plaintiff's services prior to December 31, 1917. No instruction was asked limiting recovery to pay for services rendered after December 31, 1917. All the instructions asked by appellant were given and he cannot now be heard to complain that the jury took the entire service rendered by plaintiff into consideration in determining the amount of the verdict. Judgment affirmed. Farrington and Bradley, JJ., concur. W. H. ROARK, Respondent, v. TOM PULLAM, Ap pellant. Springfield Court of Appeals, March 25, 1921. 1. PARTNERSHIP: Is Matter of Contract in Construing which Intent Controls. Except where parties may be held liable to third persons as partners because estopped by their conduct to deny a partnership, its existence is a matter of contract, and the intent of the parties controls in interpretation of the contract. 2. -: Testimony that Parties were Buying Cattle Together of no Probative Force. Testimony that plaintiff and another were engaged in the business of buying cattle together had no probative force, Roark v. Pullam. standing alone, on the question of the existence of a partnership, though in connection with other facts and circumstances it might have some value. 3. EVIDENCE: Statement that Witness and another were Partners is a Conclusion. Testimony by plaintiff on a former trial, that he and a third party engaged in buying cattle together were partners, was a mére conclusion and not evidence of a contract of partnership. 4. PARTNERSHIP: Sharing in Profits as Compensation for Services does not Create. One buying cattle for another, who was to receive a part of the profits as compensation for his services, was not a partner of the other party. 5. SALES: Warranty of Title Implied when Fair Price Paid. When personal property is sold at a fair price, a warranty of title is implied, and an express warranty need not be shown. 6. 7. 8. -: Costs of Defending Title are Recoverable for Breach of Warranty. Costs accruing in defending the title to personal property are legitimate elements of damage in a suit for breach of warranty of the title. -: Notice to Warrantor not Essential to Recovery of Costs in Defending Title. A purchaser of personal property with warranty of title is not deprived of his right to recover costs incurred in defending the title against the claim of a third party by failure to give notice to the warrantor, where he acts in good faith and upon reasonable grounds. : Interest Recoverable on Costs of Defending Warranted Title when Warrantor Refused to Pay. Where a seller, warranting a title to personal property, refused to pay the costs of the buyer's unsuccessful defense of the title, interest on such costs were recoverable by the buyer. Appeal from Pemiscot Circuit Court.-Hon. Sterling H. McCarty, Judge. AFFIRMED. Ward & Reeves for appellant. (1) If the contract proved is not the one pleaded, then there is a fatal variance and plaintiff cannot recover. Barber v. Improvement Co., 131 Mo. App. 717; |