Anderson v. Caldwell

• Decision Date: 21 March 1912
• Citation: 146 S.W. 444
• Parties: ANDERSON et al. v. CALDWELL et al.
• Court: Missouri Supreme Court

146 S.W. 444

ANDERSON et al. v. CALDWELL et al.

Supreme Court of Missouri, Division No. 2.

March 21, 1912.

Motion for Rehearing Denied April 9, 1912.

1. REFERENCE (§ 100)—REPORT OF REFEREE— EXCEPTIONS—SUFFICIENCY.

A party to a cause tried before a referee must, in the exceptions to his report, specifically point out objectionable rulings on evidence, or they are not reviewable; a general exception that the referee admitted over objection illegal, irrelevant, and incompetent evidence being insufficient.

2. ASSUMPSIT, ACTION OF (§ 7) — SCOPE OF REMEDY.

The common-law form of action in assumpsit was maintainable on a state of facts from which a contract would be implied by law, but it was not essential that there should be in fact a contract, in the sense that the parties had entered into an agreement, express or implied, as to the subject-matter, but plaintiff need only show that defendant received benefits which imposed upon him a duty to the plaintiff, so that on equitable grounds a promise was implied by law and thereby a quasi contract, which is one implied in law because of the relation of the parties, was formed.

3. SALES (§ 78)—RECOVERY OF PRICE—QUANTUM MERUIT.

Where one in the ordinary course of business furnished materials and labor at the request of a contractor, under contract to construct a building for a third person, and the contractor received the benefits there was an implied agreement that he should pay the reasonable value thereof recoverable on a quantum meruit.

4. APPEAL AND ERROR (§ 266)—EXCEPTIONS BELOW—NECESSITY—REFEREE'S REPORT.

In the absence of exceptions to the overruling of exceptions to the referee's report, no matter of exception arising out of the action of the referee is reviewable on appeal.

Appeal from St. Louis Circuit Court; W. M. Kinsey, Judge.

Action by Jean Anderson and others against George W. Caldwell and others. From a judgment for plaintiffs, defendants Caldwell and Drake appeal. Affirmed.

Wilfley, Wilfley, McIntyre & Nardin, for appellants. T. J. Rowe, Jr., T. J. Rowe, Sr., and Henry Rowe, for respondents.

KENNISH, J.

This action was brought in the circuit court of the city of St. Louis to recover the value of materials furnished and labor done by the plaintiffs at the instance and request of the defendants and used in the construction of certain buildings on the World's Fair grounds in said city in the year 1904. Plaintiffs were partners, engaged in the business of furnishing the materials and doing the labor in certain kinds of construction work on the buildings then in course of erection at the said fair grounds. The defendant Irish Exhibit Company was a corporation, and owned and conducted the Irish Village exhibit at the said fair. The defendants Hendley and Casey were owners of stock and managers of said corporation. The defendants Caldwell & Drake were contractors, and erected the buildings of the said Irish Village, under contract with the said Irish Exhibit Company.

The petition alleged that the plaintiffs, at the special instance and request of the defendants, furnished materials and paid for the labor done, as per account filed, of the value and price of $12,044; that the prices so charged were reasonable, and that the defendants promised and agreed to pay for the same, but, though often requested, have failed and refused, etc. Judgment was prayed for the sum of $12,044. The itemized account filed contained a large number of items, and, after the issues were made, the court appointed Joseph W. Jamison, Esq., as referee to try all the issues and report his findings to the court. The referee heard much testimony and filed his report, finding in favor of the defendants Irish Exhibit Company, Handley, and Casey, but in favor of plaintiffs and against defendants Caldwell & Drake in the sum of $8,100.95. Defendants Caldwell & Drake filed exceptions to the report which, upon a hearing by the court, were overruled, the report confirmed, and judgment entered accordingly. Defendants Caldwell & Drake appealed to this court.

There was testimony tending to prove the following facts: Appellants had entered into a written contract with the Irish Exhibit Company, by which they were to "furnish all labor and material of every kind necessary for the construction and completion of your buildings and improvements of whatsoever kind, to be erected on the Pike, World's Fair grounds, St. Louis, Missouri, for 10 per cent. of the total cost of the same, you to pay all bills for labor and material." Respondents entered into two separate contracts in writing with appellants for the furnishing of material and labor on the buildings described therein. Those contracts were performed, and respondents were paid by appellants in accordance with the terms thereof. During the performance of said two contracts, certain buildings and improvements not contemplated in the original contract between appellants and the Irish Exhibit Company, called extras, were agreed upon, and the work and labor sued for in this action were furnished by respondents to appellants in the construction of this additional work, without any written contract therefor, but upon the request and orders of appellants. It was in evidence that the Irish Exhibit Company sustained no contractual relations whatever with plaintiffs concerning the furnishing of the material and labor involved in this suit. There was also testimony to the contrary, but, as the weight of the evidence was a question for the referee and the trial court and not for this court, such conflict of testimony will not be considered.

1. Complaint is made by appellants that the referee erred in admitting, over defendants' objection, certain books of account which were not original entries, but were aggregates entered at a later date from other memoranda. The only exception to the report, under which this alleged error was saved if at all, is the eighth, to...