Lewis v. Slack

• Decision Date: 06 June 1887
• Citation: 27 Mo.App. 119
• Parties: ISAAC J. LEWIS, Respondent, v. SARAH J. SLACK AND HUSBAND, Appellants.
• Court: Kansas Court of Appeals

27 Mo.App. 119

ISAAC J. LEWIS, Respondent, v. SARAH J. SLACK AND HUSBAND, Appellants.

Court of Appeals of Missouri, Kansas City.

June 6, 1887

APPEAL from Jackson Circuit Court, HON. FRANCIS M. BLACK, Judge.

Reversed and remanded.

Statement of case by the court.

This is an action by the plaintiff, a contractor, to recover on the following contract, and to enforce a mechanic's lien on the property therein named:

" An agreement of two parts, made this fourteenth day of September, A. D., 1882, by and between I. J. Lewis contractor, and Mrs. S. J. Slack, owner, witnesseth, that for and in consideration of the sum of money to be paid to the said Lewis by the said Slack, as hereinafter expressed, the said Lewis hereby agrees to build and erect, and turn over to the said S. J. Slack, in good order, on or before the tenth day of December, 1882, a double brick dwelling, the same to be built substantially the same as the dwelling-house of John D. S. Cook, Esq., located on Eighth and Jefferson streets, in the City of Kansas, Mo., with the following additions, viz All windows on the east, west, and north sides of said house to have outside blinds; two coal vaults, to be built of brick or stone, in the immediate front of said house. Two cisterns seven by twenty (7 x 20), and cemented on sides and bottom and brick turned over top, to be built in the immediate rear of said house, and the same provided with chain pumps. Also the attic story of said building will be finished according to the plans; the same to be lathed and plastered, and finished with plain member architraves with 8 A Base and 2-8 x 6, 8 x 1 3-8 O. G. doors, trimmed with Jap butts and black knobs. Also, in addition to the plumbing, there will be a wash-bowl in each attic, directly over bathroom. The rear wall will be carried up, so as to finish story 8:6 high, and the basement will be 8:6 high. There will be two windows in the kitchens, one of which will be additional, and two dormer windows in front, where circles are now located in the said Cook house. In other respects and details shall conform to the plans of Mr. Cook's house. And it is further agreed, that the said Mrs. S. J. Slack shall have the privilege to make any slight alterations or changes in the construction of the interior of said house by paying, in addition to, or deducting from, the contract price of said building, as the case may be, in proportion to the contract price for like work. And all materials as delivered shall be inspected by L. F. Doane, the architect, agent, and superintendent, appointed by the said S. J. Slack, to erect and build said building, and if said material be not in conformity to that used in the construction of said Cook's house, then the same shall be removed immediately, at the said contractor's expense, and proper and effective materials applied at once. And for the performance of the foregoing, the said S. J. Slack hereby agrees to pay, or cause to be paid, to the said Lewis in installments, as the work progresses, and on certificate of the architect, L. F. Doane, the sum of eighty-three hundred ($8,300) dollars, which sum shall be in full for the performance of the work embraced under the specifications attached hereto. Witness our hands, this day and year above written.

" I. J. LEWIS, [Seal.]

S. J. SLACK.

[Seal.]"

The petition is predicated upon the contract, and avers a full performance thereof by the plaintiff, and the failure of the defendant to keep and perform the same. It alleges, that in addition to the contract price of $8,300, the plaintiff furnished material, and did other work on said building for the defendant amounting to the sum of $1,883.39; that defendant had paid the sum of $7,974. The petition prays judgment for the balance of $2,159.39.

The defendant Sarah, being a married woman, her husband, Jeremiah B. Slack, is joined as a party defendant.

The answer, after admitting the coverture and contract, and the payment of the sum of $7,974, tendered the general issue as to the other allegations of the petition. It then pleaded, by way of counter-claim, the failure of plaintiff to build the house of the material and in the manner agreed upon, and delay in its completion, and asked damages therefor.

The answer further alleged that the defendant having employed one L. F. Doane, as her architect and agent to superintend the building of said house, and to employ a competent and responsible person as contractor; that said architect, contriving to cheat and defraud her, fraudulently combined and conspired with the plaintiff, by procuring him to enter into the said contract as the ostensible contractor, when, in fact, he was simply the employe and tool of the said Doane, who was the real party in interest as such contractor, and was, in fact, the real party in interest in this suit; that he induced the defendant to believe that he, the said architect, was to act for her as her agent in protecting her interests, when, in fact, said architect was acting for said Lewis, and that this action is really prosecuted for the said Doane, etc.

The contract between the said Doane and defendant is as follows:

" Kansas City, September 14, 1882.

Witness an agreement and contract entered into this day by and between L. F. Doane and Mrs. S. J. Slack, whereby the said Doane, for and in consideration of two and one-half per cent. commission on building and improvements, to be paid him by the said Mrs. Slack, hereby agrees to furnish all plans, detail plans, and specifications of a two-story brick dwelling, to be erected for the said Mrs. Slack, on West Seventh street, in the City of Kansas, and also to superintend the construction of said dwelling, and faithfully serve and perform the duty of architect, agent, and superintendent of said dwelling, and to see to it that the same be built in strict conformity to the specifications and plans of said house; and further guarantee to see that all bills that are just claims, be paid, both labor and material bills, and to see that no liens exist or can exist, upon said house by reason of contract default of I. J. Lewis, the contractor for said house, and also to see that said building is turned over in good condition; and for the performance of the foregoing the said S. J. Slack hereby agrees to pay, or cause to be paid to the said Doane, the sum of two and one-half per cent., as per architect rules, instituted by the American Board of Architects, as follows: One hundred and three and seventy-five hundredths dollars on the acceptance of the plans and specifications, and the balance at the completion and acceptance of the work.

Witness our hands.

L. F. DOANE."

The plaintiff offered evidence tending to show a performance of the contract on his part; also that he performed additional work and furnished additional material, in the way of alterations and the like of the original plans and specifications, and gave evidence as to the reasonable value thereof.

The defendant's evidence tended to show that, in many material particulars, the material furnished, and the workmanship, failed to come up to the requirements of the contract, and that the same were defective and deficient. The defendant also offered evidence tending to sustain the allegations of the petition, that the architect did not serve her as such agent, with the fidelity and honesty his office as such agent and supervisor required of him, and that he acted rather for the contractor, and was active in prosecuting this action against her.

On this state of the proofs the court, against the objections of defendant, among others, gave the following instructions to the jury:

" If you find that the plaintiff did furnish the materials and construct the house in compliance with the contract, plans, and specifications, then he is entitled to have allowed to him the full contract price therefor. If, on the other hand, you find that the plaintiff failed to do the work in question, in compliance with said contract, plans and specifications, then you will allow him for the work, as actually done, what the same was reasonably worth, estimating the work as done on the basis that if done as agreed in said contracts, the same would have been of no greater value than the contract price therefor."

" If you find, from the evidence, that Mrs. Slack did authorize or direct additional and extra work to be done, from that agreed on in the plans, specifications, and contract before referred to, then for all such extra work done, and materials furnished by the plaintiff, he is entitled to have, and you should allow to him therefor, what the same was reasonably and fairly worth. Where changes only were made, you will allow the plaintiff the difference in the value of doing the work as done and as agreed to be done, taking into consideration the time when the change was directed, how far the work had progressed, and the work, if any, to be done over, on account of the change."

" The defendant entered into a contract with the architect, whereby he agreed to protect her in her contract with the plaintiff, and the architect had a right to receive the money from her and pay the same out to laborers, material men, and sub-contractors, and to supervise the letting of sub-contracts and employment of men. The architect, by virtue of his position as architect and superintendent alone, whether otherwise than as above stated, interested in the plaintiff's contract or not, had no right to direct extra work to be done. It is only such extra work as the defendant directed to be done, or authorized the architect to have done, after the original contract with plaintiff was made, or such as was done with her knowledge and consent, knowing that it was extra work, that she is to be charged with,

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