Taylor v. Fox

• Decision Date: 10 February 1885
• Citation: 16 Mo.App. 527
• Parties: W. TAYLOR, Respondent, v. A. J. Fox, Appellant.
• Court: Missouri Court of Appeals

16 Mo.App. 527

W. TAYLOR, Respondent,

v.A. J. Fox, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 10, 1885.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Reversed and remanded.

T. A. RUSSELL, for the appellant.

WALKER & WALKER, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This was an action on an account commenced before a justice of the peace. In the circuit court the cause was tried by a jury, and the plaintiff had a verdict and judgment for $123.33.

1. The first point made by the defendant is that the circuit court erred in allowing the plaintiff to file an amended statement of his cause of action, and in not dismissing the suit on the defendant's motion, because of the insufficiency of the original statement. No exception was saved to this ruling, and therefore it can not be considered. By neglecting to save an exception to this ruling, the defendant put himself in the position of going voluntarily to trial on the statement as amended, and of waiving his objection to the original statement.

2. The next objection of the defendant is that the court erred in admitting in evidence the written bid submitted by the plaintiff to the defendant on November 1, 1879, for the doing of the work for which the action is brought. This objection is predicated upon the theory that this bid was not the contract under which the work was done; but that it was done under a contract signed by the defendant five or six days later, to wit, on the 5th of November, 1879. At the time this paper was admitted in evidence, it had not been shown that the proposition which it contained had been accepted by the defendant. Until this was shown, it did not appear that it constituted any part of the contract between the plaintiff and the defendant. Although the plaintiff testified that this bid was his contract, that testimony did not tend to show that it was the defendant's contract. It therefore stood as a mere proposition. But though it may have been irregular to admit it in evidence at the time when it was offered without something to indicate that it was to be followed up by evidence of acceptance; yet this irregularity seems to have been cured by what was brought out in a subsequent stage of the plaintiff's testimony, where he stated that this bid was accepted, and that he immediately went to work under it, and did the work under it.

3. The work for which the action was brought was the building of a furnace in a photograph gallery, built, owned, and used by the defendant. It appeared, without dispute, that five days after the plaintiff had submitted to the defendant the bid in writing above referred to, the defendant's architect called upon the plaintiff at his shop, and submitted to him a formal contract for his signature, covering all that was agreed to by the plaintiff in his bid, but containing some further provisions in the defendant's favor; that this contract was read over to the plaintiff; that the terms of it were talked over between the defendant's architect and the plaintiff, and were understood by the plaintiff, and that the plaintiff thereupon took up a pen and wrote at the end of the contract the words, “I accept the above,” and signed his name thereto. The plaintiff in his testimony states no fact tending to show that this paper did not embody the final agreement of the parties, unless the following statements made by him have such a tendency: “The paper of November 5, was brought to me by the architect. I did not read it. The architect may have read it to me, but there were other persons in my office, and if he did I did not hear it. I signed the contract without reading it.”

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