Barr & Martin v. Johnson
| Decision Date | 07 April 1913 |
| Citation | 155 S.W. 459,170 Mo.App. 394 |
| Parties | BARR & MARTIN, a Firm Composed of J. W. BARR and J. P. MARTIN, Respondents, v. Wm. H. JOHNSON, HOLLAND KEET, ALVA MILLIGAN and L. S. MEYER, Appellants |
| Court | Missouri Court of Appeals |
Appeal from Greene Circuit Court.--Hon. Guy D. Kirby, Judge.
AFFIRMED.
Judgment affirmed.
Wm. H Johnson and Wright Bros. for appellants.
(1) There is no evidence to support the first count. Plaintiff's evidence attempts to predicate a recovery upon an express contract. (a) The contract was not completed. (b) There is no evidence of the value of the labor and services of plaintiffs. (c) There is no evidence of the reasonable value of materials. (d) Plaintiffs performed no service for defendants. (e) Plaintiffs cannot sue upon a quantum meruit and recover on special contract. Koons v Car Co., 203 Mo. 203, 255, 260. (2) There is no evidence of money being paid in behalf of defendants or to their use to sustain the second count. Plaintiffs in their evidence claim to have entered into a contract with the defendants to construct a driveway of certain dimensions at 60 cents per lineal foot and furnish all material and labor. It was no concern of defendants where plaintiffs secured the money to pay for material and labor in the performance of the contract. (3) There is no evidence to sustain the third count. Plaintiffs base their right of recovery on a contract to construct a driveway and no evidence was offered of any employment of plaintiffs by defendants to render for the defendants any service or to superintend the building of a road. (4) There is no evidence of a stated account to sustain the fourth count. (5) Plaintiffs cannot recover on an original contract modified by subsequent agreement. The 10 per cent proposition was made after plaintiffs ceased work and no work on the contract was performed thereafter. Koons v. Car Co., 203 Mo. 203, 259; Warren v. Mfg. Co., 161 Mo. 112. (6) There was no consideration for the offer of 10 per cent. The offer was only made by Johnson, was conditional, was not accepted. No further work was performed by plaintiffs after the proposition was made. Johnson did not accept the work. (7) If the court should find there is no evidence against any one of the defendants then no judgment can be rendered against any of the defendants. (8) Defendants' instruction one should have been given. Plaintiffs would have no right to recover if they violated their contract. (9) Defendants' instruction two should have been given. The evidence on part of plaintiffs' witnesses shows that they charged for laborers who were not employed by them on the roadway. For that overcharge and for wrongful and excess charge on material plaintiffs are not entitled to recover.
Frank B. Williams for respondents.
(1) Although the evidence is conflicting, there is substantial evidence to support the verdict. And in such cases it is conclusively presumed that the jury drew that inference which would support their finding. Kattleman v. Fire Ass'n, 79 Mo.App. 452; Leeright v. Ahrens, 60 Mo.App. 119; Gunther Bros. v. Aylor, 92 Mo.App. 167. (2) The statement filed with the justice is sufficient to support the verdict. Pleadings in justice courts are liberally construed. Gunther Bros. v. Aylor, 92 Mo.App. 166; Strickland v. Quick, 45 Mo.App. 610. (3) The fact that there was a contract between the parties does not necessarily signify that their action must be based thereon. Stockman v. Allen, 160 Mo.App. 232; Mansur v. Botts, 80 Mo. 656; Printing Co. v. Publishing Co., 127 Mo.App. 150; Gunther v. Aylor, 92 Mo.App. 166. (4) The two instructions asked by defendants and refused by the court are not predicated upon the facts in evidence and they were properly refused. Instructions must be within the purview of both the pleadings and the evidence. Black v. Met. St. Ry., 217 Mo. 685; Degonia v. Railroad, 224 Mo. 589; Mansur v. Botts, 80 Mo. 658. (5) Where the terms of a contract are not admitted, but are to be ascertained from the oral evidence of witnesses, it is the province of the jury to determine from the evidence what the contract is. Smith v. Aude, 46 Mo.App. 631; Judge v. Leclaire, 31 Mo. 127; Jungeman v. Brewing Co., 38 Mo.App. 463. (6) No new burden was imposed on defendants by the new ten per cent arrangement and no new consideration was necessary to support that agreement. Warren v. Mfg. Co., 161 Mo. 124. (7) The judgment is clearly for the right party and should be affirmed. The merits of the case are manifestly and overwhelmingly in favor of respondents. Blessie v. Blackburn, 31 Mo.App. 264; Kuhn v. Life Ins. Co., 71 Mo.App. 305; Woody v. Railroad, 104 Mo.App. 678.
Farrington, J., not sitting.
--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, Missouri, 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 plaintiff's failure to do so.
The cause originated in a justice of the peace 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 in 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 fifty dollars 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 1335 to 1350 feet in length. The road was to be built by excavating the same twelve feet wide to a depth of at least six 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 six cents per square foot, or seventy-two 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 sixty 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 plaintiffs said they could not do the work for that price and offered to quit the job. The defendants would not agree to this and Johnson directed the plaintiffs to continue with the work and said that if they "did not make a profit, I would see that they did not lose anything." The plaintiffs agreed to this and went ahead with the work until it was completed. This contract, as thus modified, is somewhat out of the ordinary and to some extent indefinite; but both parties agree to substantially the same facts as to making the first contract at seventy-two cents per lineal foot; of defendants' complaint that that was too high and that it could be done for sixty cents; and that plaintiffs continued the work under the agreement that if they could not make a good thing or profit at that price, the defendants would make it up or see that plaintiff did not lose anything.
The evidence further shows that plaintiffs were three weeks in constructing the road, during which time they employed a considerable force of men and teams, contracted for and used considerable material and procured and used a heavy roller. The defendant Milligan for the most part acted as paymaster and at the end of the first week the pay roll of that week, amounting to $ 150, was presented to him and he paid this amount to plaintiffs, which was used in paying for the men and teams. At the end of the second week he also paid to plaintiffs the amount of the pay roll of that week, amounting to $ 150, and this was expended in the same manner. And again at the end of the third week, when as plaintiffs say the work was...
To continue reading
Request your trial