Anderson v. Caldwell

• Decision Date: 09 April 1912
• Citation: 146 S.W. 444,242 Mo. 201
• Parties: JEAN ANDERSON et al. v. GEORGE W. CALDWELL et al., Appellants
• Court: Missouri Supreme Court

146 S.W. 444

242 Mo. 201

JEAN ANDERSON et al. v. GEORGE W. CALDWELL et al., Appellants

Supreme Court of Missouri, Second Division

April 9, 1912

Appeal from St. Louis City Circuit Court. -- Hon. W. M. Kinsey Judge.

Affirmed.

Wilfley Wilfley, McIntyre & Nardin for appellants.

(1) The evidence admitted as to the value of the services of the staff work was incompetent. Books of account are admissible only when they contain original entries made in the due course of business at or near the time the transaction took place. Aggregates entered at a considerably later time than at which the transaction took place are inadmissible. Milling Co. v. Walsh, 108 Mo. 277; Drug Co. v Grady, 57 Mo.App. 41; Owen v. Bray, 80 Mo.App. 526; Stephen v. Metzger, 95 Mo.App. 620; Robinson v. Smith, 111 Mo. 205; R. S. 1909, sec. 6355; Wigmore on Evidence, par. 1555. (2) It is well settled law that the action of quantum meruit will not lie except against one from whom will be implied a promise to pay. Mansur v. Murphy, 49 Mo.App. 266; Skeen v. Johnson, 55 Mo. 25. (3) Two things are necessary to support general assumpsit on quasi-contract -- some performance or contribution by the promisee, and actual benefits received by the promisor. Martin on Civil Procedure, sec. 54; Keener on Quasi-Contracts, p. 252. (4) Whenever service is rendered and received, a contract of hiring or an obligation to pay will be presumed. Where an act done is beneficial, the subsequent assent of the beneficiary will be sufficient to support a finding of a previous request. Knowledge and acquiescence are sufficient to establish a previous request. Smith v. Meyers, 19 Mo. 434; Dougherty v. Whitehead, 31 Mo. 255; Wagner v. Illum. Co., 141 Mo.App. 51. (5) Since, in quasi-contracts, the benefit received by the defendant and not the detriment incurred by the plaintiff, forms the basis of the defendant's liability, a plaintiff cannot recover from a defendant unless it be shown that the defendant has received some benefit from the performance by the plaintiff. Medlin v. Brooks, 9 Mo. 106; Keener on Quasi-Contracts, p. 253; Zach v. French, 69 Me. 389; 11 Am. Digest, par. 131; Patterson v. Prior, 18 Ind. 440; McClay v. Hedge, 18 Pa. 66; Wendt v. Vogel, 87 Wis. 462.

T. J. Rowe, T. J. Rowe, Jr., and Henry Rowe for respondents.

Exceptions to the report of the referee that at the hearing before the referee, the referee admitted over the objection of defendants, illegal, irrelevant and incompetent evidence offered by the plaintiff, does not inform the court what particular illegal, irrelevant and incompetent evidence was offered by the plaintiffs and admitted by the referee. It is necessary that these matters should be specially pointed out, and not having been done, the exceptions must be disregarded. Ferry Co. v. Railroad, 73 Mo. 419; Smith v. Haley, 41 Mo.App. 611; Buxton v. Debrecht, 95 Mo.App. 604; Mfg. Co. v. Gibbons, 35 Mo.App. 602; Dalles v. Brown, 60 Mo.App. 493; Swift Co. v. McCormick, 84 Mo.App. 609; State ex rel. v. Boeppler, 63 Mo.App. 151.

KENNISH, J. Ferriss, P. J., and Brown, J., concur.

OPINION

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 $ 8100.95. 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 ten 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.

I. 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-wit: "Because in the hearing before the referee said referee admitted, over the objection of these defendants, illegal, irrelevant and incompetent evidence offered by plaintiffs." The rule as to the saving of exceptions to the ruling of the referee in the admission of testimony, requires that the exception shall point out directly and specifically the evidence objected to. A general objection that the referee admitted incompetent and illegal testimony is not sufficient. In the case of Smith v. Haley, 41 Mo.App. 611, the court held, as stated in the syllabus: "In order that a party to a cause which has been tried before a referee may demand a review of rulings of the referee on the admission or exclusion of evidence he must, in the exceptions filed by him under the statute on the filing of the referee's report, specifically point out the rulings of which he complains. A general exception by defendants that 'the referee admitted illegal and improper evidence for the plaintiff, and excluded legal and proper evidence for the defendants,' is insufficient." [See, also, Wiggins Ferry Co. v. Railroad, 73 Mo. 389; State ex rel. v. Woods, 234 Mo. 16, 136 S.W. 337.]

II. The main ground of appellants' complaint in this court is that as the materials were not furnished or the work done under a special contract, and as the form of the action was quantum meruit, it was incumbent upon ...