Moore v. H. Gaus & Sons Manufacturing Company

• Decision Date: 19 December 1892
• Citation: 20 S.W. 975,113 Mo. 98
• Parties: Moore v. H. Gaus & Sons Manufacturing Company, Appellant
• Court: Missouri Supreme Court

20 S.W. 975

113 Mo. 98

Moore v. H. Gaus & Sons Manufacturing Company, Appellant

Supreme Court of Missouri, Second Division

December 19, 1892

Appeal from St. Louis City Circuit Court.--Hon. Jacob Klein, Judge.

Affirmed.

Mills & Flitcraft for appellant.

(1) The assignment of the cause of action was not shown to be with the authority of the National Automatic Fire Alarm Company. Hyde v. Larkin, 35 Mo.App. 365. (2) The contract was not in its nature a "building contract," and plaintiff was not justified in abandoning the contract and bringing suit on the quantum meruit. Yeats v. Ballentine, 56 Mo. 530; Eyerman v. Mt Sinai, 61 Mo. 489; Haysler v. Owen, 61 Mo. 270; Fox v. Pullman Co., 16 Mo.App. 122; Gruetzner v Furniture Co., 28 Mo.App. 263; Fletcher v. Mfg Co., 35 Mo.App. 321; Fleischman v. Miller, 38 Mo.App. 177; Gregg v. Dunn, 38 Mo.App. 283; O'Brien v. Mayer, 23 Mo.App. 648; Graves v. Pierce, 53 Mo. 423; Richardson v. Koch, 81 Mo. 264; Baldwin v. Merrick, 1 Mo.App. 281; Fairbanks v. Drug Co., 42 Mo.App. 262; Electric Co. v. Drug Co., 42 Mo.App. 272. (3) The use of the system did not constitute an acceptance or a waiver of defects. Dinsmore v. Livingston Co., 60 Mo. 241; Haynes v. Church, 80 Mo. 289; Smith v. Brady, 17 N.Y. 173; Gove v. Mill Co., 17 P. 740. (4) The remedy for a capricious refusal to accept work as satisfactory is in equity and not in an action claiming full compliance. Dinsmore v. Livingston Co., 60 Mo. 244. (5) The instructions of the court are contradictory and confusing, and framed so as to suggest a recovery either on the basis of a fulfilled contract or on a quantum meruit with the contract abandoned. (6) The court erred in admitting improper and incompetent evidence offered by the plaintiff. First. As to intentions of parties in putting in similar systems. Roberts v. Lynch, 15 Mo.App. 456. Second. Copies of reports as to the condition of the weather. 1 Wharton on Evidence, sec. 647. Third. The condition of the pipe market as an expense for delay in fulfilling contract. Fourth. Admission of letter of Ripley & Bronson. Fifth. Admission of offer of compromise of disputed claim not accepted. 2 Wharton on Evidence, sec. 1090, and cases cited; 1 Greenleaf on Evidence, sec. 192; Ferry v. Taylor, 33 Mo. 333; 1 Rice on Evidence, pp. 435, 473; Ins. Co. v. Balt Co., 93 U.S. 527; West v. Smith, 101 U.S. 273; Kierstead v. Brown, 23 Neb. 595.

Silas B. Jones and Rowell & Ferris for respondent.

(1) First. As to third persons dealing with a corporation, it is not necessary to prove formal action by its board of directors in order to establish the authority of its chief officers to act for it. The authority of such officer, as well as its limits, may be established by showing the manner in which the corporation in fact transacts its business through such officer. Ins. Co. v. Seminary, 52 Mo. 480; Sparks v. Dispatch Trans. Co., 104 Mo. 531. Second. The chief officer of a corporation, without special authority from its board of directors, may bind the corporation in matters arising in the usual course of business. Sparks v. Dispatch Trans. Co., 104 Mo. 531. Third. The admissions of a chief officer of a corporation touching any of its business transactions are competent evidence against the corporation. Costigan v. Michael T. Co., 38 Mo.App. 219. Fourth. A parol assignment of a chose in action is valid. Kuhn v. Schwartz, 33 Mo.App. 610; Smith v. Sterritt, 24 Mo. 260. (2) First. Where the plaintiff has fully performed a contract and nothing remains but the duty of the defendant to pay the stipulated price thereunder, the plaintiff may recover the stipulated price under a petition framed upon an indebitatus assumpsit. In such case the plaintiff is not required to declare on the contract; he has the option to use the common count in assumpsit, or to declare specially on the contract. Mansur v. Botts, 80 Mo. 651; Stout v. Tribune Co., 52 Mo. 342; Plummer v. Frost, 81 Mo. 425; Carroll v. Paul, 16 Mo. 226; Fox v. Car Co., 16 Mo.App. 122; Hanel v. Freund, 17 Mo.App. 618; Crump v. Rebstock, 20 Mo.App. 37; Floerke v. Distilling Co., 20 Mo.App. 76; Koenig v. Morrison, 44 Mo.App. 411; Pomeroy on Rights & Remedies, sec. 543; Bliss on Code Pleading, sec. 157. Second. If the plaintiff having fully performed his contract elects to use the common count in assumpsit, the contract price is the measure of his damages. In such case the contract price is the quantum meruit or quantum valebat. Fells v. Vestrali, 2 Keyes (N. Y.), 152; Kersteller v. Raymond, 10 Ind. 199, and authorities cited under first division of this proposition. (3) First. Where work has been done and materials furnished by the plaintiff under a special contract, which has not been fully performed by the plaintiff, yet, if the defendant has derived a benefit from the part performance of the contract, the plaintiff in an action framed in assumpsit upon a quantum valebat may recover the value of the work done and materials furnished, not exceeding the contract price, after deducting any damage which has resulted to the defendant from the plaintiff's failure to fully perform the contract. Yeats v. Ballentine, 56 Mo. 530; Eyermann v. Cemetery Ass'n, 61 Mo. 489; Rude v. Mitchell, 97 Mo. 365; Thompson v. Allsman, 7 Mo. 530; Lowe v. Sinklear, 27 Mo. 308; Davis v. Brown, 67 Mo. 313; O'Brien v. Mayer, 23 Mo.App. 648; Koenig v. Morrison, 44 Mo.App. 411. Second. An exception to this doctrine exists in case of a contract purely for personal services, where, if plaintiff has contracted to serve the defendant for a specified term, and wilfully abandons the service before the expiration of the term, he cannot recover anything of the defendant in any form of action. Earp v. Tyler, 73 Mo. 617. (4) First. Where the subject-matter of a contract is a chattel to be delivered, although work and labor are to be done on the chattel before its delivery, the contract is one of sale of the chattel, and not a contract for work and labor merely. Pratt v. Miller, 18 S.W. 965; Burrell v. Highleyman, 33 Mo.App. 183; Fairbanks v. Drug Co., 42 Mo.App. 262; Pike E. Co. v. Drug Co., 42 Mo.App. 272; Lee v. Griffin, 1 B. & S. 272; 1 Benjamin on Sales [Corbin's Ed.] sec. 102, et seq. Second. Where the seller of a chattel fails to fully comply with his contract, yet, if the purchaser has received and used the chattel, though not as complying with the contract, the seller may recover its value to the defendant upon a count in indebitatus assumpsit. Yeats v. Ballentine, 56 Mo. 530; Thompson v. Allsman, 7 Mo. 530; Oxendale v. Wetherell, 9 B. & C. 386; Bowker v. Hoyt, 18 Pick. 555, and the following editions of Benjamin, where the great body of the cases are cited: 2 Benjamin on Sales [Corbin's Ed.] p. 903; 2 Benjamin on Sales [Kerr's Ed.] p. *682; Benjamin on Sales [Bennett's Ed.] p. 73. See also 2 Parsons on Contracts [7 Ed.] p. *523. (5) The signal service is created by the federal government, and its records being public records are competent evidence of the facts therein recorded; and the contents of the records may be proved by a verified copy under the common-law rule for proving contents of public records. The statutory mode of proof is not exclusive. 1 Greenleaf on Evidence, sec. 483; 1 Wharton on Evidence, sec. 639; Karr v. Jackson, 28 Mo. 316. (6) To render an offer of settlement incompetent evidence against the party making it, the offer must have been made for the purpose of compromising pending or at least threatened litigation, and with the express or at least implied condition that it is to be "without prejudice." The party making it must at the time intend it to be a confidential overture for peace; otherwise it is not incompetent evidence against him. Ferry v. Taylor, 33 Mo. 323; 1 Greenleaf on Evidence, sec. 192; 2 Wharton on Evidence, sec. 1090.

OPINION

Gantt, P. J.

This is an action to recover $ 2,900, the contract price of equipping appellant's factory and planing mill, in the city of St. Louis, with the "Grinnell Automatic Sprinkler System," an apparatus designed and used for the extinguishment of fires.

The petition is in the form of indebitatus assumpsit for the value of the work and labor done and material furnished defendant by the National Automatic Fire Alarm Company of New York, and alleges the construction of said apparatus in defendant's factory and planing mill by said corporation, its acceptance and use by defendant, the assignment after completion of the account by the corporation to plaintiff and the failure to pay upon demand.

The answer is a general denial and a special defense that the work was to be done in accordance with certain specifications and the money to be paid when it was satisfactory to all parties; that it had never been completed at all or satisfactory to defendant, and the system was worthless.

The answer contains also a counter-claim, that the contract required the system when put in should be satisfactory to the board of fire underwriters; that plaintiff knew that the purpose of requiring the work to be done satisfactory to the underwriters was that defendant might be relieved of high charges for insurance and obtain a lower rate; that the building was completed September 20, 1888, and owing to the delay in completion of the sprinklers the defendant had been compelled to pay the increased rate of insurance to the amount of $ 600; a further damage of $ 750, caused by the obstruction of its machinery and employes by the alarm company, and a further damage of $ 400 in repairs and work on the system by defendant to keep it in order; and a further sum of $ 1,500, because the system was constructed of inferior and improper materials, and not according to contract, and "that the alleged assignment (to plaintiff of the account) was made to prevent the defendant from...