Beggs v. Shelton

• Decision Date: 08 April 1913
• Citation: 173 Mo. App. 127,155 S.W. 885
• Parties: BEGGS v. SHELTON.
• Court: Missouri Court of Appeals

155 S.W. 885

173 Mo. App. 127

BEGGS v. SHELTON.

St. Louis Court of Appeals. Missouri.

April 8, 1913.

1. WORK AND LABOR (§ 9) — EXPRESS CONTRACT EXCLUDING IMPLIED CONTRACT.

One who furnished on request an estimate as to repairing a building, and who was thereafter directed by the owner to perform the work, and who did so, could not recover a commission for superintending it though he could recover commission for superintending additional work ordered.

2. WORK AND LABOR (§ 14) — BUILDING CONTRACTS — MODIFICATIONS — ABANDONMENT.

Mere changes in a written or oral building contract by which additional work is to be done are not an abandonment of the contract, and the fact that a contractor to repair a building was directed by the owner to make other improvements was not an abandonment of the contract as to the work included therein, in the absence of mutual consent.

3. WORK AND LABOR (§ 30) — INSTRUCTIONS.

An instruction that a contract to repair a building is deemed abandoned by a subsequent contract to make other improvements and perform other labor in the repairing of the building materially different from the original contract is erroneous for omitting all reference to any intention of the parties to abandon the original contract.

4. TRIAL (§ 219) — INSTRUCTIONS — MEANING OF TERMS.

An instruction that a building contract is deemed abandoned by a subsequent contract materially different from the original contract is erroneous for failing to define the term "materially different."

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

An instruction which attempts to cover the whole case, and leaves out a material part of a defense, is erroneous.

6. DAMAGES (§ 210) — INSTRUCTIONS — MEASURE OF RECOVERY.

An instruction on the measure of damages should limit the recovery to the amount demanded in the petition.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by James Beggs against Lee Shelton. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. L. Fort, of Kennett, for appellant. J. P. Tribble, of Kennett, for respondent.

REYNOLDS, P. J.

This is an action on an account for work and labor done, material furnished and money alleged to have been paid out by plaintiff on account of defendant, the amount demanded, after allowing credits, being $766.41. At a trial before the court and jury, plaintiff recovered $470, for which judgment was entered. Filing a motion for new trial as well as one in arrest, defendant has duly perfected his appeal to this court.

The judgment in this case must be reversed and the cause remanded for an error in an instruction given at the instance of plaintiff. That instruction told the jury that if they found there was a contract in writing between plaintiff and defendant touching the amount which defendant was to pay plaintiff for doing certain work and furnishing certain materials in remodeling and repairing a building belonging to defendant in which the material, character and extent of the work to be performed was specified and set out and the particulars and value thereof agreed upon, "and shall further find that subsequent to the making of said contract defendant directed plaintiff to make other improvements and perform other labors in the repairing and remodeling of said building, materially different from the terms...