W.W. Brown Const. Co. v. Macarthur Bros. Co.
| Decision Date | 23 May 1911 |
| Parties | W. W. BROWN CONSTRUCTION COMPANY, Plaintiff, Appellant, v. MacARTHUR BROTHERS COMPANY, Defendant, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Robert M. Foster Judge.
Affirmed.
Kinealy & Kinealy for plaintiff, appellant.
(1) The judgment by default is conclusive that the contracts set forth in the first and third counts of plaintiff's petition were made and broken as therein set forth. Froust v. Bruton, 15 Mo. 620; Munford v Wilson, 19 Mo. 672; Price v. Page, 24 Mo. 67; Lombard v. Clark, 33 Mo. 308; Phillips v Bachelder, 47 Mo.App. 54; Robinson v. Lawson, 26 Mo. 69; Foster v. Smith, 10 Wend. 377; Lanneau v. Ervin, 12 Rich. (L.) 31; Gannard v. Dollar, 4 Jones (L.) 175; Ottawa v. Foster, 20 Ill. 296. (2) The agreement between plaintiff and defendant, made after plaintiff refused to excavate the cemented gravel at the price of earth, that plaintiff should be paid the reasonable value of the excavation of cemented gravel, having been acted on by plaintiff, was binding on all, and even had there been other prior arrangements as to this matter, as defendant contends, they became abrogated by the new contract. Keating v. Korfhage, 88 Mo. 532. (3) Defendant having failed to file any pleading to plaintiff's petition and a judgment by default having been rendered it cannot be heard to claim a waiver of any obligation arising out of the contracts set forth in plaintiff's statement of the first and third counts. Such waiver must be pleaded. Lanitz v. King, 93 Mo. 513; Erlich v. Ins. Co., 103 Mo. 231; Bank v. Hatch, 78 Mo. 13; McCullough v. Ins. Co., 113 Mo. 606. (4) The word "teams" includes "wagons." Hotchkiss v. Hoy, 41 Conn. 568; Rowell v. Crothers, 75 Conn. 126. (5) A party is not bound by a date stated in a petition and particularly when it is stated as "on or about" and is not of the essence of the transaction. Bersch v. Dittrick, 19 Mo. 129; Martin v. Miller, 3 Mo. 135; State v. Martin, 8 Mo. 102; Burnham v. Jacobs, 66 Mo.App. 628; Meeker v. Cutter, 51 Mo.App. 344; 22 Ency. Pl. & Pr. 611. Besides this, no objection was made to the proof of the contract alleged in first count, because of its date, when it was offered before the referee. (6) Plaintiff is not bound by any specifications of work save those described and called for in his working contract. Donnelly v. Adams, 115 Cal. 129; Williamette Co. v. Los Angeles Co., 94 Cal. 229; Sexton v. Chicago, 107 Ill. 323; Granite Co. v. Dolan, 138 N.Y. 607. (7) The contract set forth in the first count was binding irrespective of the admission by the default. Keating v. Korfhage, 88 Mo. 532. (8) The cause was referred to the referee merely to assess the damages on default, and he had no authority to go outside of the power conferred on him by the order appointing him. Bank v. McMullen, 85 Mo.App. 142. (9) In this case the referee in effect dismissed the third cause of action as to the items for delays to the engine and grader. This was beyond his power. Coburn v. Tucker, 21 Mo. 219. (10) The referee misconceived the law of this State on the question of pleading, because the account embodied in the petition is as much a part of the statement of the cause of action as any other part of it, and although items may not be alluded to in the other written part of the statement, yet if set out in the account, proof must be heard as to them to the same effect as if they were also stated in the other written part. Hassett v. Rust, 64 Mo. 329; Combs Co. v. Block, 130 Mo. 679; Connor v. Heman, 44 Mo.App. 347; 1 Ency. of Forms, p. 312; Meyer v. Chambers, 68 Mo. 627.
Collins & Chappell for defendant, appellant.
(1) The status of a defendant having suffered an interlocutory judgment by default, nil dicit, is that plaintiff is entitled to nominal damages, but in order to recover actual damages, such damages must be established by competent evidence, and upon the hearing defendant is entitled to cross-examine the plaintiff's witnesses and to introduce extrinsic evidence tending to contradict plaintiff's evidence or mitigate the amount of damages: R. S. 1899, secs. 769, 774, 775; McCutchin v. Batterton, 1 Mo. 342; Barclay v. Pickles, 38 Mo. 143; 10 Ency. Pl. and Pr. 1154, 1156. (2) The contract sued on in the first count of plaintiff's petition provides the method of classifying and determining the material excavated. (3) The plaintiff having accepted payment in full for all the material by it excavated under the classification of earth and at the contract price for earth, is estopped to claim that said material was other than earth. McGregor v. Ware, 188 Mo. 611. (4) The plaintiff having agreed to accept an extra allowance for the cost of explosives and labor for blasting, is now estopped to claim for material upon any other theory or basis. (5) Plaintiff having, in the first count of its petition, declared upon a written contract, dated May 30, 1902, it was error to permit plaintiff to recover upon a subsequent oral contract dated in September, 1902. Harrington v. Com. Co., 107 Mo.App. 423; McGregor v. Ware, 188 Mo. 611; Lanitz v. King, 93 Mo. 513; Smith v. Ham, 51 Mo.App. 433; Bunce v. Beck, 43 Mo. 266. (6) From the pleadings upon evidence in this case it appears that plaintiff waived any right of action which may have accrued to it under the third count of its petition. Bishop on Contracts, secs. 792 and 795; Jordan v. Dose, 24 Ga. 478; McCord v. Railroad, 3 La. Ann. 285; Lagare v. Fowler, 4 La. Ann. 243; Fox v. Harding, 7 Cush. (Mass.) 511; Geiger v. Railroad, 41 Md. 4. (7) The judgment in favor of plaintiff upon the third count of the petition is excessive.
The plaintiff and defendant are each corporations engaged in construction work. The defendant had a contract with the Illinois Central Railroad to do a certain construction work in Kentucky. It thereafter entered into a sub-contract with the plaintiff corporation, employing it to do a portion of the work, described in the contract, for the prices therein named: to-wit, "earth excavating, 19 1/2 cents per cubic yard; clearing, $ 25 per acre; grubbing, $ 8 per station." This contract between the parties to this suit was in the form of a letter addressed by plaintiff to defendant upon May 30, 1902, and an acceptance endorsed thereon by defendant. It contained a provision, to-wit, "All in accordance with the specifications and to the satisfaction of the chief engineer of construction of the Illinois Central Railroad Company." After some delay in obtaining "access and right of way" to and over the grounds where the work was to be done, plaintiff engaged in the performance of the work. During the progress of the work of excavating, the plaintiff reached a substance termed "cemented gravel," more difficult and expensive in excavation than earth. Plaintiff called defendant's attention to the quality of this substance, and proposed to stop work until an agreement was reached as to payment for excavating the same.
The evidence tends to show that there was an agreement reached, that plaintiff should go forward with the work and should be allowed the reasonable value of excavating the "cemented gravel." With this understanding the work was performed, and plaintiff received payment therefor according to the terms of the contract between the parties, except as to the work done of excavating the "cemented gravel," which was paid for at the price of excavating earth. Plaintiff demanded in addition a further sum equal to the reasonable value of performing that work. Plaintiff further demanded that it should be allowed the cost and expense of "assembling teams and wagons" for the doing of the work in question and being compelled to hold them in readiness during the delay occasioned by the defendant's failure to procure for plaintiff "access and right of way" to the property within a reasonable time after defendant had required plaintiff to be ready with "men and teams" and other appliances for doing the work.
Upon the failure of the defendant to comply with these demands, the present suit was brought in a petition containing five counts. Three of the counts were dismissed or nonsuits taken therein on the trial. Copy of the petition and summons was personally served upon the defendant to the April term, 1904, of the circuit court of the city of St. Louis. The defendant made default, and judgment was rendered accordingly on the first and third counts of the petition. The first count of the petition alleged, in substance, that defendant on or about the 30th of May, 1902, employed plaintiff to do the excavating in and about Capp's Cut, on the Illinois Railroad; that plaintiff excavated 9166 cubic yards of a material known as "cemented gravel," the reasonable value of which was seventy-five cents per cubic yard, and prayed judgment accordingly. The third count alleged cause of action against defendant for failure to procure the right of way and access to the grounds on which said work was to be done at the time indicated by defendant, whereby plaintiff was put to the cost and expense of $ 2261. The items, dates and particulars of all of which were incorporated in said third count, as follows:
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