Brown v. Strimple

• Decision Date: 23 March 1886
• Citation: 21 Mo.App. 338
• Parties: EMILY J. BROWN, Appellant, v. JACOB STRIMPLE ET AL., Respondents.
• Court: Missouri Court of Appeals

21 Mo.App. 338

EMILY J. BROWN, Appellant,

v.JACOB STRIMPLE ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Mar. 23, 1886.

APPEAL from the St. Louis Circuit Court, W. H. HORNER, Judge.

Reversed and remanded.

EDWARD CUNNINGHAM, for the appellant: The court erred in admitting evidence of an alleged custom, or that it was always “customary, if there are old buildings on the lot to be removed by the contractor, to state this in the specifications.” Had there been proper evidence to establish a custom among contractors and builders, uniform, certain, and reasonable, it was not binding on plaintiff until some evidence tending to prove her knowledge of it had been offered. Walsh v. Mississippi Transportation Co., 52 Mo. 434. But such evidence did not tend to prove a custom, either uniform, certain, or reasonable. It relates merely to how parties usually make their contracts, and not to the interpretation or execution of them; and such a custom, if established, would not be reasonable. Ober v. Carson, 62 Mo. 209.

TAYLOR & POLLARD, for the respondent: That the evidence of custom was competent for the purpose for which we offered it, was manifest. Daniels v. Insurance Co., 12 Cush. 417; Paper Mill Co. v. Farmer, 41 N. H. 389; Lawson on Ex. 73.

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

The defendants are builders, and for a stated compensation, which has been fully paid, agreed to build two houses for the plaintiff.

The contract, among other things, provided as follows: “The work of erecting and finishing said buildings, including all alterations and additions herein provided for, or that may be agreed upon hereafter, is to be executed with all reasonable dispatch, and the same shall be completed and delivered to the said party of the first part [the plaintiff] in perfect order and condition, fit for occupancy, on or before the fifteenth day of October, 1883, and for every day thereafter, until said buildings are completed and delivered to the said party of the first part, the said parties of the second part [the defendants] do hereby covenant and agree to pay to the said party of the first part, not as penalty, but as liquidated damages, an amount at the rate of three dollars per day, which amount is agreed upon as being the actual damage, provided they are not kept back by an unavoidable accident or hindrance over which they have, or could have, no control, and no such accident or hindrance shall be credited as an extension of time for the completion of this contract, unless the same shall be claimed under a written request by the said parties of the second part, and approved by said party of the first part, or the superintending architect, in the week that any hindrance or accident may occur, and these conditions are not to be made or rendered void by any alterations, additions, deviation, or omissions, of the work to be performed under this contract, but in such case the time to be extended as shall be deemed proper by the superintendent, and agreed to by the said parties of the second part at the time of such extension. The superintendent's opinion, certificate, report, and decision, on all matters, to be binding and conclusive on the parties of the second part.”

This action was brought for a violation by the defendants of this clause of the contract. The plaintiff claims that the buildings were not completed until April 1, 1884, in consequence whereof she sustained damages in the sum of five hundred dollars.

Defendants, by their answer, claim:

1. That the buildings were completed and delivered to the plaintiff December 5, 1883.

2. That the plaintiff, when the contract was let, represented to them that there were no obstructions on the premises, whereas, in fact, there were some old dilapidated...