Barr & Martin v. Johnson

• Decision Date: 07 April 1913
• Parties: BARR & MARTIN v. JOHNSON et al.
• Court: Missouri Court of Appeals

155 S.W. 459

170 Mo. App. 394

BARR & MARTIN v. JOHNSON et al.

Springfield Court of Appeals. Missouri.

April 7, 1913.

1. APPEAL AND ERROR (§ 1001) — QUESTIONS OF FACT — SUFFICIENCY OF EVIDENCE.

On appeal from a judgment, entered on a verdict for plaintiff, as being unsupported by the evidence, a statement of the case is properly made from the standpoint of plaintiff's evidence.

2. CONTRACTS (§ 247) — MODIFICATION — EVIDENCE.

Evidence, in an action by a firm to recover for labor performed amounting to $77 and for $50 paid out for defendants under an oral agreement modifying the original contract for the construction of a private roadway, in which defendants counterclaimed on the ground that the road was rough, held to sustain a verdict for the amounts claimed.

3. TRIAL (§ 156) — DEMURRER TO EVIDENCE — INFERENCES.

On a demurrer to the evidence, the court must indulge every reasonable inference of fact in favor of the party offering the evidence which the jury might indulge with any degree of propriety.

4. CONTRACTS (§ 237) — AGREEMENT — MODIFYING CONTRACT — CONSIDERATION.

Where plaintiff's contract to construct a private roadway at a certain figure per lineal foot was orally modified by an agreement that he should be paid at least 60 cents per foot and a profit of 10 per cent. of the amount expended for labor and material, the agreement providing for a profit of 10 per cent. in place of the indefinite profit previously agreed upon was not the making of a new contract, but an agreement making definite the amount receivable as profit, for which the making of the original contract and the labor performed thereunder was a sufficient consideration.

5. TRIAL (§ 253) — INSTRUCTIONS — IGNORING ISSUES.

In an action for labor performed and for money expended by plaintiff for defendant in the construction of a private roadway, where plaintiff's evidence was to the effect that an agreement for 10 per cent. profit was based on the settlement of the amount of compensation as the matter then stood, a requested instruction covering the whole case and directing a verdict for plaintiff on the sole finding that plaintiff did not complete the road was properly refused, since it ignored the issue presented by plaintiff's evidence.

6. APPEAL AND ERROR (§ 1066) — REVIEW — HARMLESS ERROR — INSTRUCTIONS.

In an action for a deficiency on the labor performed in the construction of a roadway for defendant not claiming anything for materials paid for by plaintiff, and where there was no excess to credit anywhere, the refusal of defendant's instruction that if he had paid an excess over the amount expended by plaintiff for labor to credit such excess on the bill for material was harmless.

7. JUSTICES OF THE PEACE (§ 100) — ISSUES — VARIANCE.

Under a statement of suit before a justice of the peace informing defendant that plaintiff claimed that defendant owed him $77 for services in constructing a road and $50 for payment by plaintiff for labor, the proof and recovery of those sums under a modification of the parties' oral contract was not a variance.

8. APPEAL AND ERROR (§ 999) — QUESTIONS OF FACT — VERDICT.

In the absence of any material error, the finding of the jury is binding on this court.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Barr & Martin, a firm composed of J. W. Barr and J. P. Martin, against William H. Johnson and others, with counterclaim by defendants. Judgment for plaintiffs, and defendants appeal. Affirmed.

Wm. H. Johnson and Wright Bros., all of Springfield, for appellants. Frank B. Williams, of Springfield, for respondents.

STURGIS, J.

The plaintiffs, as partners, sued the defendants herein for labor performed and for money paid out by them for defendants under an oral agreement relative to building a certain private roadway. The defendants were the owners of separate tracts of land in the suburban resident district of Springfield, Mo., known as "Meadowmere," and desired to build a road or driveway in front of same. There is no dispute but that plaintiffs were employed to and did do this work. There is, however, a dispute as to the exact terms of the contract and its modifications under which the work was performed and the money expended, and as to whether the work was performed and completed according to such contract. There was a counterclaim filed by defendants for damages for failure to complete the road as agreed for an amount which is alleged to have been necessarily expended in completing the road after plaintiffs' failure to do so. The cause originated in a justice of the peace's court, where it was tried and plaintiffs prevailed. The defendants suffered the same fate at the hands of a jury in the circuit court. Hence this appeal.

It is sufficient to say on the counterclaim that the jury found against it, as was necessarily the case, when it found that plaintiffs had complied with their contract in doing the work of building this road and that defendants owed them $77.45 for labor, and a balance of $50 for money expended by plaintiffs in building the road. Under the facts in this case it would not be possible for a jury to find for plaintiffs on the theory that they had complied with the contract, and yet award damages to the defendants for their failure to comply with such contract. It will therefore only be necessary to examine the alleged errors in permitting a recovery by plaintiffs.

As defendants challenge the verdict as being unsupported by the evidence, a statement of the case is properly made from the standpoint of plaintiffs' evidence. McGee v. Railroad, 214 Mo. 530, 114 S. W. 33; Riggs v. Railroad, 216 Mo. 304, 115 S. W. 969; Merritt v. Matchett, 135 Mo. App. 176, 115 S. W. 1066.

The road to be built, and which was built, is variously given as being 1,335 to 1,350 feet in length. The road was to be built by excavating the same 12 feet wide to a depth of at least 6 inches. This was to be filled with rock or "field stone," broken down level with sledge hammers to the thickness of at least four inches, and then two inches of crushed rock placed over that, and then thoroughly rolled with a heavy roller. The plaintiffs contracted for and defendants Milligan and Johnson, acting for themselves and the other defendants, agreed to pay plaintiffs 6 cents per square foot, or 72 cents per lineal foot, for doing this work. On this contract plaintiffs made preparations to commence the work, assembled their tools, and were making arrangements for material with which to construct the road. The defendant Johnson seems to have been more active in looking after this work and generally acted as spokesman for all the defendants. He claimed to have ascertained from another contractor, which fact was denied by that contractor, that the work could be done for the price of 60 cents per lineal foot, and in the presence of Milligan told the plaintiffs of this fact and said they had agreed to pay too much and that he must have been asleep when he made the first contract. The...