Brush v. Miller

• Decision Date: 17 February 1948
• Docket Number: No. 27274.,27274.
• Parties: BRUSH v. MILLER.
• Court: Missouri Court of Appeals

208 S.W.2d 816

BRUSH v. MILLER.

No. 27274.

St. Louis Court of Appeals. Missouri.

February 17, 1948.

Rehearing Denied March 19, 1948.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Action by George Jerrold Brush against Clara M. Miller on a contract to recover the price agreed to be paid for labor performed and material furnished. The jury returned a verdict for defendant. From an order sustaining plaintiff's motion for a new trial, defendant appeals.

Order affirmed and cause remanded.

Francis R. Stout and Richard M. Stout, both of St. Louis, for appellant.

Samuel H. Liberman and Donald J. Meyer, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action upon a contract whereby plaintiff seeks to recover the price agreed to be paid by defendant for labor performed and materials ordered or furnished in connection with the decoration of defendant's home at 35 Kingsbury Place, in the City of St. Louis. Judgment was prayed for the aggregate sum of $3,922.93, with interest from February 6, 1945. Upon a trial of the issues, a verdict of ten jurors was returned in favor of defendant. Plaintiff thereupon filed a motion for a new trial, which the court sustained upon the ground of error committed in the admission of certain evidence, as well as in the giving of an instruction for defendant imposing on plaintiff the burden of proof upon the issue to which the evidence in question had been directed. The appeal is by defendant from the order of the court sustaining plaintiff's motion for a new trial.

Plaintiff follows the business of designing and supplying the furnishings and decorations for houses, and has his place of business at 329 North Euclid Avenue, in the City of St. Louis.

In his petition plaintiff set up the making of the contract whereby he undertook to do certain painting and furnish certain materials, all for agreed prices, and then alleged that he had performed the services and furnished the materials required of him by the contract, and that defendant was indebted to him therefor in the amounts she had agreed to pay.

The answer was a general denial coupled with a special plea that all orders or contracts for materials and services other than the painting had been countermanded by registered mail.

The controversial question in the case is whether the defendant, in an action brought by the plaintiff to recover the contract price agreed to be paid by the defendant for the plaintiff's work and services, is entitled to make the defense, under a mere general denial, that the work was performed and the services rendered in an unskillful and unworkmanlike manner. In other words, in an action on contract for the agreed price to be paid for work and services, must the defense of defective and unworkmenlike performance be specially pleaded by the defendant in order to authorize the introduction of evidence in support of such defense? And as a corollary to the principal question, where the defendant has failed to plead such defense specially but instead has stood upon a mere general denial, is it proper to give an instruction for the defendant imposing the burden on the plaintiff of proving performance of the contract in a good and workmanlike manner?

It will be noted in the instant case that while defendant set up the affirmative or special defense that her contract with plaintiff had been countermanded and terminated, her defense upon all other issues in the case, including the issue of plaintiff's performance of the contract, was limited to a mere general denial.

As a matter of fact, the record shows that after the jury was sworn but before the taking of evidence was begun, defendant's counsel suggested an amendment to the answer specially pleading the defense of unskillful and unworkmanlike performance with respect to the item of painting, and that the court indicated that leave to amend would be denied upon the ground that the request came too late. An amended answer setting up the purported termination of the contract had been filed by defendant only three days previously. Once again, after plaintiff had taken the stand and had concluded a substantial part of his direct examination, the request for leave to amend was repeated by defendant's counsel, and was again denied by the court.

But notwithstanding the court's refusal to permit the amendment after the trial had begun, the question continued to crop up at intervals throughout the trial.

During plaintiff's cross-examination, and over the objection of plaintiff's counsel, the court allowed defendant's counsel to inquire of plaintiff whether it had been understood between him and defendant that his work was to be done in a good and workmanlike manner. Defendant's counsel insisted that such inquiry was competent in connection with establishing the terms of the contract. The court took the position that the particular inquiry was not improper since such a condition was in any event implied in every artisan's undertaking, but warned defendant's counsel that he would not be permitted to put on witnesses to show defective work.

Later on, during plaintiff's further cross-examination, defendant's counsel sought to bring out, on the pretext of showing failure of performance according to the specifications of the contract, that after plaintiff had completed his work, it had been necessary for defendant to have other decorators "go in there and do all the work over, with the exception of the papering". The court sustained the objection of plaintiff's counsel upon the ground that such inquiry, regardless of the basis upon which defendant's counsel might seek to justify it, was actually directed to the question of whether the work had been defectively done, and was therefore beyond the scope of the pleadings in the case.

The identical question again arose while defendant herself was on the stand, when her counsel sought to have her testify that after plaintiff had finished his own work on the job, she had been compelled to employ other decorators and painters to complete the work according to the contract. Again the court sustained an objection upon the ground that such testimony would involve the question of defective performance, which was outside the issues raised by the pleadings.

Thus far the rulings of the court had conformed to a generally consistent pattern of excluding all evidence tending to show defective performance. Having twice denied defendant's belated request for leave to amend her answer so as to bring that issue into the case, the court endeavored to restrict the evidence within the limits set by the pleadings. The only exception, if it might be regarded as an exception, was when the court permitted defendant's counsel to cross-examine plaintiff as to whether it had been understood between him and defendant that his work was to be done in a good and workmanlike manner. We have pointed out, however, that the only reason which induced the court to allow such inquiry was the fact that even in the absence of an express agreement, such a condition is none the less implied in every working contract. United States Wind, Engine & Pump Co. v. Manufacturers' Automatic Sprinkler Co., 84 Mo.App. 204; John O'Brien Boiler Works Co. v. Sievert, Mo.App., 256 S.W. 555; Usona Mfg. Co. v. Shubert-Christy Corporation, Mo.App., 132 S.W.2d 1101.

The change in the court's position came during the redirect examination of defendant's witness Dilschneider, a general contractor who had been engaged in some repair work at the Kingsbury Place address while plaintiff's subcontrator was doing the painting and decorating called for by the contract.

Defendant's counsel asked Dilschneider to state whether in his opinion, based upon his knowledge and experience in the contracting trades, the painting that had been done by plaintiff evidence good or poor workmanship. Upon objection interposed by plaintiff's counsel, defendant's counsel argued that such evidence was admissible for the dual purposes of contradicting plaintiff's own testimony and of showing failure of performance according to the terms and specifications of the contract. The court expressed concern as to whether it should not have granted defendant's request for leave to amend her answer, and then ruled that inasmuch as Dilschneider had been working on the premises at the time the painting was done so as to have been an eyewitness of the quality of the work, he would be permitted to answer the question. Dilschneider thereupon answered that in his opinion the work had not been done in a good and workmanlike manner.

So the matter stood at the time of the submission of the case, when defendant requested, and the...