Perkinson v. Fehlig

• Decision Date: 23 March 1886
• Parties: HENRY PERKINSON, Respondent, v. FRANK FEHLIG Appellant.
• Court: Missouri Court of Appeals

21 Mo.App. 327

HENRY PERKINSON, Respondent,

v.FRANK FEHLIG Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 23, 1886.

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

Reversed nisi.

F. T. LEDERGERBER, for the appellant: The instructions offered by the defendant and refused by the court, should have been given, because there is evidence to support all of them. Cravens v. Gillidon, 63 Mo. 28, 33, referring to Nixon v. Palmer, 8 N. Y. 398; Mussick v. Railroad, 57 Mo. 134; The State v. Hollenscheidt.61 Mo. 302. The only evidence produced in rebuttal by the plaintiff was his own declarations. These were against his interest, are presumed to be true, and prevent his recovery for extra sized stone, except as stated in the first proposition. They constitute an admission. Shirts v. Overjohn, 60 Mo. 305; Morse v. Diebold, 2 Mo. App. 163. The court erred in ordering the amendment, because it enabled the plaintiff to recover on facts which he had denied in the pleadings. Harrison v. Hastings, 28 Mo. 346; Irwin v. Chiles, 28 Mo. 576; Green v. Galagher, 35 Mo. 226; Corby v. Wright, 4 Mo. App. 443; Pockard v. Hill, 7 Cowan 434. There is no legal evidence to support the verdict as rendered, and the case ought to be reversed. Hearne v. Keith, 63 Mo. 84; Dedo v. White, 50 Mo. 241; Smith v. Crews, 2 Mo. App. 269, 279.

FRANK J. DONOVAN and EBER PEACOCK, for the respondent.

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

This is an action to recover a balance claimed to be due for building stone, sold and delivered by the plaintiff to the defendant. The plaintiff claims a balance due of $1,402.82, of which amount $498.99 is conceded to be due by a tender made by the defendant. The trial court rendered judgment for the plaintiff for $1,299.57 and interest.

The trial court, in disposing of the issues before it, made a careful and detailed finding as to the facts, and its views of the law as applicable to the testimony. This finding is embodied in the transcript, and both parties have embodied it in their printed arguments, and have directed our attention to it as supporting their positions, respectively. As no error appears in the court's rulings in other respects, the only question that is really presented for our consideration is, whether the views of the law entertained by the court as applicable to the uncontroverted facts are correct.

The controversy between the parties is in regard to the quantity and quality of the stone delivered, and as to whether all the stone thus delivered was within the prices fixed by special contract between the parties prior to the delivery, and if all the stone was not within the terms of the contract, what portion thereof was outside of it.

The plaintiff's measurement, which was adopted by the court as the correct one, put the aggregate quantity of stone furnished at 1068 21/22 perches, and its aggregate superficial area at 4301 feet, while the defendant's measurement put the former at 1055 8/22 perches, and the latter at 4002 feet. As there was substantial evidence to support either measurement, the finding of the court on that subject is necessarily conclusive.

The difficulty in the case arises touching the amount of recovery, as affected by the quality of the stone delivered. Prior to the delivery, the defendant called upon the plaintiff and informed him in general terms, what the character of the structure was, for which the stone were required. Thereupon, the plaintiff and the defendant executed the following contract:

“ST. LOUIS, MISSOURI, October 16, 1883.

I hereby offer to deliver to Frank Fehlig, all the limestone needed for the basement of the church on Lindell and Grand avenues, as follows:

Rubble, at $2.25 per perch.

Range work, 40 cents per superficial foot.

Broken ashlar, 20 cents per superficial foot.

HENRY PERKINSON, by his son.

PERKINSON.

Accepted.

FRANK FEHLIG.”

It will be seen that this contract by its terms purport to cover all the stone that was to be delivered, because there is no pretense that any other but limestone was to be, or was actually delivered. Nor is there any controversy touching the true meaning of this memorandum. Both parties agree that the true meaning of it is, that all stone funished should first be measured in the wall per perch as rubble masonry, and that forty cents per superficial foot should be added for all such parts of the masonry as fell within the class known as range work, and twenty cents per superficial foot for all such parts of the masonry as fell within the designation of broken ashlar.

So far, the case is free from doubt, and if the plaintiff's measurement had been confined to the classes thus specified, then the finding of the court, if supported by any substantial testimony, would be conclusive on the question of classification, as well as on the question of amount.

Here, however, a new element intervenes. The plaintiff in his petition and by his evidence, claims that 2701 1/2 feet of the stone furnished by him, were of a kind which should be classified not only as range work, but as dimension range or dimension stone, and further claims that he should be allowed on account of such stone not forty cents, but sixty cents extra for each superficial foot. This claim is based upon the assumption that this stone was...