Baker v. J. W. McMurry Contracting Company

• Decision Date: 04 June 1920
• Parties: I. B. BAKER v. J. W. McMURRY CONTRACTING COMPANY, Plaintiff in Error
• Court: Missouri Supreme Court

223 S.W. 45

282 Mo. 685

I. B. BAKER v. J. W. McMURRY CONTRACTING COMPANY, Plaintiff in Error

Supreme Court of Missouri, Second Division

June 4, 1920

Appeal from Jackson Circuit Court. -- Hon. O. A. Lucas, Judge.

Affirmed.

Cooper Neel & Wright for plaintiff in error.

(1) Plaintiff's given Instruction 2 is erroneous. (a) It authorizes a finding for the plaintiff, and yet it does not cover the defendant's defenses of waiver and estoppel both of which were set up in defendant's answer and borne out by the testimony. Hall v. Coal Co., 260 Mo. 367; Thornton v. Mersereau, 168 Mo.App. 9; Beggs v Shelton, 173 Mo.App. 131. (b) It directs the jury that if they find for the plaintiff and that a certain amount is due, to-wit, $ 11,835.73, they will add thereto "interest to this date at the rate of 6 per cent per annum from the 26th day of June, 1913, less a credit in the interest of $ 710.21," etc. There was no testimony of any demand made by the plaintiff from the defendant for payment on June 26, 1913, or theretofore. (c) It directs the jury to credit the payment of $ 710.21 made on June 26, 1916, "in the interest." This payment was not a payment on interest at all, but it was a payment of the sub-contractor's portion on one of his estimates made by the railroad company and which was turned over to the plaintiff by the defendant as soon as received from the railroad company, which was applied on the principal sum, under the contract, and, of course, if so applied would make a difference on the amount claimed by the plaintiff, making the total amount claimed by him less than if the credit was made on the alleged interest. (d) This instruction is further erroneous in the last line thereof where it refers to the custom pleaded by the defendant and testified to by the witnesses. The instruction tells the jury that its general custom would only be a defense in case said custom was general "and that the parties contracted with the same in view." If there was a general custom in this same kind of business between these parties (and the evidence shows that there was and that it had been generally observed over a period of seventeen years, in their doing business together), as to when the sub-contractor's pay became due, there being nothing in the contract as to when the sub-contractor should receive pay on his estimates, then this general custom as to when he should receive his pay would govern whether the parties had it in view at the time or not. (2) Plaintiff's given Instruction 3 is erroneous. (a) It is erroneous because it is not based on the evidence. Defendant sought to prove the receivership of the railroad company and was denied the right to do so by objection of plaintiff's counsel. (b) The instruction is erroneous because it is abstract. (c) It is erroneous because it is a comment on the evidence and evidence that was excluded. (d) It is erroneous because it is a positive direction to the jury that the question of receivership of a railroad and the delay of the plaintiff in doing the work "did not constitute a matter in contemplation of the parties plaintiff and defendant." The instruction does not leave it to the jury to find whether or not it was in the contemplation of the parties plaintiff or defendant, but was a positive direction to them as to what was in the contemplation of the parties at the time. (3) Error was committed in the giving of plaintiff's Instruction 4. This instruction is erroneous because it is too broad. It takes in the whole world. It does not limit the custom in the locality in which the work was done or to any locality. Under this instruction the jury was told that the custom had to be found by them to be general without limitation as to any locality or country. This was error. 12 Cyc. 1040. (4) The court erred in refusing defendant's Instruction 3 in the nature of a demurrer to the evidence. (a) It should have been given because on the face of it and under the testimony the alleged contract is unenforceable for the reason that it provides that a rebate from the railroad company shall be procured both on freight charges and on railroad fares. Plaintiff admitted he received the refund. This was an unlawful act. Foster Lumber Co. v. Ry. Co., 270 Mo. 643. This being an unlawful act, the entire contract is tainted and is void, hence the demurrer to the evidence should have been sustained. (b) There was no testimony of any demand of payment. (c) Because the plaintiff conceded in his evidence the custom pleaded by the defendant that his money was not due from the defendant until paid by the railroad company, and, therefore, the suit was prematurely brought. (d) Furthermore, under the admissions of the plaintiff he waives any payment due him until his estimates had been paid by the railroad company, and under his admissions he was estopped from asserting his claim against defendant at the time of bringing this suit. (5) The court erred in refusing to give defendant's Instruction 8. It presented the defense set up by the defendant that if the plaintiff had acquiesced, either specifically or by his course of dealing, acts and conduct, in looking to the railroad company for any money due him on the contract sued on and not to press a claim against the defendant until the defendant had collected from the railroad company, then their verdict would be for the defendant. This proposition was covered by the pleadings and the testimony and should have been given. (6) The court erred in not sustaining the motion for a new trial because the verdict of the jury was contrary to the evidence introduced in the case and is against the greater weight of the evidence: (a) The plaintiff admitted the custom pleaded in defense of this case. (b) The president of the defendant, testified as to this custom. (c) The course of dealing of the parties all along showed that they complied with this custom. (d) The plaintiff never made any effort to get his money from the defendant, knowing that it had not been paid by the railroad company, until after the railroad company went into the hands of a receiver and until after legal proceedings in an effort to get an equitable lien established against the railroad company prior to the bondholders had failed.

Haff, Meservey, German & Michaels for defendant in error.

(1) There was no error in plaintiff's given Instruction 2. Riney v. Hill, 14 Mo. 500; Sutton v. Libby, 201 S.W. 618; Berclid Realty Co. v. Obear, 191 S.W. 1070; Allen v. Forschler, 189 S.W. 636; Railroad v. Second St. Imp. Co., 256 Mo. 406. (2) There was no error in plaintiff's given Instruction 3. Implement Co. v. Machine Co., 268 Mo. 371; Friend v. Miller, 67 Cal. 464, 8 P. 40; Turner v. Gibbs, 50 Mo. 556; Schaeffer Mfg. Co. v. Natl. F. E. Co., 148 F. 159; Lefkowitz v. Bank, 152 Ala. 521; Bridge Co. v. Stewart, 134 Mo.App. 618; Fisher v. Edgefield, 62 S.W. 27. (3) There was no error in plaintiff's given Instruction 4. Kearse v. Seyb, 209 S.W. 635; Staroske v. Publishing Co., 235 Mo. 67; Manzke v. Goldenberg, 149 Mo.App. 12. (4) The court did not err in giving plaintiff's Instruction 6. Breen v. United Rys. Co., 204 S.W. 523; Powell v. Railroad, 255 Mo. 453. (5) The court did not err in refusing to give defendant's Instruction 3. Conference Rulings, Interstate Commerce Comm., Bulletin No. 7, issued August 17, 1917, p. 57; Howell v. Jacks, 262 Mo. 403; Ice Co. v. Kuhlman, 238 Mo. 705; Railroad v. Iron Works Co., 117 Mo.App. 167. (6) Under the evidence plaintiff was entitled to a directed verdict. Porterfield v. Am. Surety Co., 210 S.W. 119; Garrett v. Limes, 209 S.W. 295; Wolff v. Campbell, 110 Mo. 114; Kimball v. Brawner, 47 Mo. 399; Kelley v. Meyer, 74 Mo.App. 330; Planters Oil Co. v. Gresham, 202 S.W. 148; State ex rel. v. Pub. Serv. Com., 269 Mo. 75; Greenleaf on Evidence, sec. 277; Mfg. Co. v. Jaeger, 81 Mo.App. 242; Meeker v. Klemm, 11 La. Ann. 104; Godkin v. Monahan, 83 F. 116; 2 Elliott on Contracts, secs. 1679 and 1620; Trustees v. Hoffman, 95 Mo.App. 488; Montgomery v. Schwald, 177 Mo.App. 83; Williams v. Ry., 85 Mo.App. 108; Smith v. Kemp, 92 Mich. 357; Stein v. Fogarty, 4 Idaho, 702, 43 P. 681; Conner v. Clark, 12 Cal. 168; Gorrell v. Ins. Co., 63 F. 371; Burke v. Miller, 187 S.W. 141; Mumford v. Tolman, 157 Ill. 258; Stull v. Thompson, 154 Pa. St. 43; Beherel v. Myers, 240 Mo. 58; Sunderland v. Mfg. Co., 192 Mo.App. 287; Cameron Coal Co. v. Block, 110 P. 720.

OPINION

WALKER, C. J.

This is a suit on a contract for construction work on a railroad instituted in the Circuit Court of Jackson County by Baker against the McMurry Contracting Company. Upon a trial at the May term, 1917, of said court a judgment was rendered in favor of the plaintiff. Under a writ of error the defendant seeks a review of this judgment.

The contract upon which this action is based was in the form of a letter addressed by the defendant to the plaintiff and accepted by the latter. The subject-matter of this contract is as follows:

"Agreeable with our conversation this morning, we herewith make you the following proposition on work to be done on the N. O. T. & M. R. R. east of Houston, Texas. Repairing pier No. 2 at the San Jacinto River bridge, building piers and abutments at Barnes Creek, Cowpen Creek, Hickory Creek and Anchorage, La., at the following unit prices:

(Omitted as not in issue.)

"It is understood that you are to furnish all material and all labor necessary to complete this work, and that the railroad company will refund freight charges and railroad fares paid on laborers on the N. O. T. & M. R. R. It is understood that they will also pay for extra labor performed at San Jacinto River; such as removing old cofferdam, and preparing the pier and footing courses for new concrete, at cost plus 10 per cent. It is further understood that w...