O'brien v. Mayer

• Decision Date: 21 December 1886
• Citation: 23 Mo.App. 648
• Parties: JOHN O'BRIEN ET AL., Respondents, v. A. B. MAYER, Appellant.
• Court: Missouri Court of Appeals

23 Mo.App. 648

JOHN O'BRIEN ET AL., Respondents,

v.A. B. MAYER, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 21, 1886.

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Reversed and remanded.

MUENCH & CLINE, for the appellant: The contract is an entirety, and is not to be treated as a succession of contracts, each item furnishing a separate and distinct cause of action. Railroad v. Levy, 17 Mo. App. 508, and cases cited; 2 Parsons on Contracts [5 Ed.] 517. The respondents must sue either on the contract, or plead and prove circumstances such as to raise a new contract and give them a remedy on a quantum meruit. 2 Parsons on Contracts [5 Ed.] 522. The appellant has a right to such a judicial determination of this matter as to prevent the respondents from suing him hereafter, when they perform the next item, or each succeeding item, of work called for by the contract. Mansur v. Botts, 80 Mo. 651, 651; Stone v. St. Louis Trib. Co., 52 Mo. 342, 347.

FISHER & ROWELL, for the respondents: The court below properly refused the declaration of law asked by the defendant. It did not follow without condition, that the plaintiffs could not recover if they had agreed to put up the machinery sued for in lieu of similar machinery they had agreed to put up at another point. They might, under the conditions shown at the trial, abandon the contract and sue for the value of the chimney, breeching, etc. Yates v. Ballentine, 56 Mo. 530; Haysler v. Owen, 61 Mo. 275; Eyerman v. Mt. Sinai Cem. Ass'n, 61 Mo. 491; Davis v. Brown, 67 Mo. 314; 2 Parson's Cont. [7 Ed.] 522-3; Mansur v. Botts, 80 Mo. 655.

ROMBAUER, J., delivered the opinion of the court.

The plaintiffs and the defendant entered into the following contract:

“ST. LOUIS, May 8, 1883.

A. B. Mayer, Esq.

DEAR SIR:--We propose to make for you and erect at your factory, on Harrison street, three boilers, twenty-two feet by forty-two inches in diameter, each to contain two fifteen-inch flues, properly riveted to the heads; also, one steam drum, twenty-six inches in diameter by ten feet long, one mud drum, twenty inches by fifteen feet long; drums to be connected to the boilers with good bonnets made of best flange steel. Diameter of legs on steam drum ten inches by twelve inches long; legs on mud drum eight inches by fourteen inches long. Material in shells of boiler to be the best C. H. No. 1, one-fourth inch thick. The heads to be of the best flange, one-half inch thick. Drums to be of same material as the boilers. All the longitudinal seams to be double riveted on boilers and steam drums, and all plates to be beveled ready for caulking before being riveted, so as not to break the skin of the plates by the use of the chipping chisel after being riveted. All the punching shall be done with a nipple or center punch, so that all holes will be fair, and no drifting allowed; also two four-inch safety valves, properly riveted, with wrought flanges and nipples; also, one two and a half-inch blow-off valve, one two-inch check valve, one glass water gauge, separate, with seven gauge cocks, and one steam good gauge; also, new fire front, together with back plate, back stand, and full set of fine grate bars, four feet long, for burning slack coal; one breeching to fit the three boilers, and one chimney, fifty feet high by forty-two inches in diameter, with damper iron in chimney, to be No. 14 iron; that in breeching to be No. 12. The above job to be put up and left ready for brick work and pipe connections, all in the best workman-like manner. Also, one battery of three boilers, the same as above mentioned, to be erected in your factory in Lowell, all for the sum of $600. And the punching and shearing machine, and the two boilers in the factory on Harrison street, and the two boilers in your factory in Lowell, the old boilers and fixtures belonging to them, to be removed by us; also, the punching and shearing machine and the new boilers to be put in position by us, with chimney properly fastened, boilers to be hand-riveted instead of machine-riveted; also, one man-hole on steam drum large enough to allow a man to get in. Each boiler twenty-two feet long by forty-two inches in diameter. Front to have damper doors on boilers. Three boilers to be ready for Harrison street on or before September 1, 1883; the Lowell boilers to be ready thirty days later.

Very Respectfully,

JOHN O'BRIEN & CO.

Accepted May 15, 1883.

A. B. MAYER,

Per F. MAYER.”

The plaintiffs thereupon entered upon the performance of their contract, put up one complete set of boilers, smoke stack, and attachments at the Lowell factory, and received the old machinery at said factory, the punching and shearing machine, and the sum of three hundred dollars in cash.

After this was done the Lowell factory was destroyed by fire, and the plaintiffs at the defendant's request put up a chimney and breaching at said factory, the reasonable value of which, including two man-heads, is shown to have been worth $218.50. The plaintiffs demanded payment of this amount from the defendant, but the defendant refused to pay it, claiming that all the work was covered by the contract between them, except the item of $6.50 for man-heads, for which item the defendant made a tender to the plaintiffs in cash.

The plaintiffs thereupon instituted suit against the defendant, before a justice of the peace, on the following account; which was the only statement of their cause of action:

“ST. LOUIS, July 22, 1884.

M. A. B. Mayer & Son, to John O'Brien & Co., Dr.

2 Manheads, 10x15, at $3.25

$ 6.50

1 Chimney, 42” dia. x50' high, 1925 lbs., at 6c

$115.50

1 Breeching, 894 lbs., at 7c

62.58

1 Combing, 152 lbs., at 6c

9.12

Putting same up, 54 1/2 hours,

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