Ahern v. Boyce

• Citation: 19 Mo.App. 552
• Parties: J. R. AHERN, Respondent, v. M. E. BOYCE, Appellant.
• Decision Date: 24 November 1885
• Court: Court of Appeal of Missouri (US)

19 Mo.App. 552

J. R. AHERN, Respondent,

v.M. E. BOYCE, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 24, 1885.

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Reversed and remanded.

T. K. SKINKER, for the appellants: The stipulations of the contract, both in respect to omissions and additions, fix absolute limitations upon the power of the superintendent, and are binding. Hartupee v. Pittsburgh, 97 Pa. St. 107, 119; Ford v. U. S., 17 Conn. Claims, 60; Stuart v. Cambridge, 125 Mass. 102; Illinois Deaf and Dumb Inst. v. Platt, 5 Bradw. (Ill.) 567; Myers v. Sarl, 30 C. L. L. J. Q. B. 9; Russell v. Sa Da Bandeira, 32 C. L. L. J. C., 68. Where there is a written contract accompanied by specifications, the superintending architect has no power to order a departure from them, even when not expressly restricted. Flesh v. Christopher, 11 Mo. App. 483, 491; Starkweather v. Goodman, 48 Conn. 101. Having abandoned the contract, plaintiff can not recover in an action upon it. 2 Pas. on Con. 520-521. This is a suit upon the contract. Eyermann v. Mt. Sinai Cem. Ass'n, 61 Mo. 489; Lee v. Ashbrook, 14 Mo. 378; Yeats v. Ballentine, 56 Mo. 530; Davis v. Brown, 67 Mo. 314.

A. R. TAYLOR, for the respondent: The petition alleges a complance with the contract upon his part, until defendant refused to allow him to fulfill it, and then seeks to recover not upon the contract, but the reasonable value of the work done. Eyermann v. Mt. Sinai Cem. Ass'n, 61 Mo. 489; Yeats v. Ballentine, 56 Mo. 530. The contractor was entitled to recover on the quantum meruit, the reasonable value of the work done. McCullough v. Baker, 47 Mo. 401; Fitzgerald v. Hayward, 50 Mo. 517.

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

Determining the nature of this action, according to the plaintiff's claim, we find it to be an action to recover the reasonable value of labor and material, done and furnished in repairing certain buildings, under a contract which, when partly performed by the plaintiff, was wrongfully terminated by the defendant; and also to recover the reasonable value of some extra work. The petition admits a part payment of $1,506.05.

The defendant's answer admits the contract, but denies its wrongful termination by the defendant. It sets out the provisions of the contract in full, and avers that by its terms the superintendent's certificate, as to the value of the work done, was conclusive on the parties, and that the superintendent had certified the value of the work to be $1,770.60. It also avers that the contract provided that no extra work should be done, or allowance claimed for any addition or omission, unless the same was first agreed to in writing and signed by the plaintiff and the superintendent. It then states by way of counter-claim, that the plaintiff had agreed to complete the buildings by the first of August, 1884, and to forfeit ten dollars for each day after that date, until the date of completion; that the plaintiff had never completed the buildings to the damage of the defendant in the sum of one thousand dollars, praying judgment, etc.

The contract offered in evidence contains the following clauses:

“The superintendent shall be at liberty to make any deviation from, or alteration in, the plan, form, construction, detail, and execution described by the drawings, and specifications, without invalidating, or rendering void this contract, and in case of any difference in the expense, an addition to, or abatement from, the contract price shall be made, and the same sh be determined by the architect. And in case any such alteration, or change shall be made, or directed by the said superintendent, as aforesaid, in the plans, drawings, and construction of the aforesaid buildings, and in case of any omission, or addition, to said building being required by said superintendent, the cost and expense thereof is to be agreed upon in writing, and such agreement is to be signed by said party of the second part, and superintendent, before the same is done, or before any allowance therefor can be claimed; and in case of any failure so to agree, the same shall be completed on the original plan. * * * The work of erecting, and finishing said buildings, or work, including all alterations and additions in said contract provided, or hereafter agreed upon, is to be proceeded with with all reasonable dispatch, and the same shall be completed and delivered up to said party of the first part, in...