Bury v. City of St. Louis

• Decision Date: 31 October 1848
• Citation: 12 Mo. 298
• Parties: BURY v. THE CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

12 Mo. 298

BURY

v.THE CITY OF ST. LOUIS.

Supreme Court of Missouri.

October Term, 1848.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

This was an action on the case brought by appellant, in the St. Louis Court of Common Pleas, against the appellee. The declaration contained three counts. The first two counts were substantially the same, differing mainly in this, that the first stated the case more fully in detail, the second more concisely. The case stated in these two counts was, in substance, that on the 5th of January, 1846, one Stewart Mathews made a contract with the appellee, to erect and finish for her a hospital in the city of St. Louis, by a certain time agreed upon, for the price of $6,650, payable in certificates of indebtedness, bearing interest at the rate of six per cent., 85 per cent. of which said price was to be paid in certificates as aforesaid, during the progress of the work, and the remaining 15 per cent. after the completion of the work, after the settlement of all lawful claims, liens and demands against the building, on account of materials furnished and work done. And that afterwards, on the 20th day of said month of January, the appellant and said Mathews entered into a contract by which the appellant was to do all the painting of said hospital, and furnish all the materials necessary therefor by the date named in the contract between Mathews and the appellee, for the price and sum of $1,000. That the appellant, Bury, fully complied with his contract with Mathews, and Mathews with his contract with the city, of St. Louis. And that upon the completion of the work stipulated for in the said two contracts, Mathews owed Bury, the appellant, under the contract between them, the sum of $350, and that the appellee, the city of St. Louis, then owed said Mathews, under the contract between them, the larger sum of $581 62. And that the said sum of $350 due to Bury as aforesaid, was a demand against the said hospital built, as aforesaid-- of all which the appellee had due notice. And that by reason of the premises, it became the duty of the appellee not to pay to said Mathews the aforesaid sum of $581 62, until after the payment of said demand of Bury against said building on account of materials delivered and work done. But that the appellee, in violation of her said duty, whilst the appellant Bury held his demand against said building, and whilst said demand still remained due and unpaid, the appellee wrongfully, and in fraud of the appellant's rights, paid over to Mathews the said sum of $581 62. The third count differs from the first two in this, that, for and upon the demand which he held as above stated against said hospital, he had a right to avail himself of a lien upon the building under the mechanics' lien law, which it was the duty of the appellee to pay and satisfy and in consideration that the appellant, Bury, would not avail himself of his said lien, the appellee promised to pay the amount of his said demand whenever she should be requested. The appellee in due time filed two pleas to the declaration of appellant. First, the general issue of not guilty; and second, that she “was in no wise liable to the appellant in manner and form as he had complained against her.” To the second plea Bury's counsel filed a demurrer, and took issue on the first. Afterwards the appellee withdrew her second plea, and left the cause at issue for trial before the jury on the first plea.

On this issue, at a subsequent term of the court, the parties went to trial before the jury. The plaintiff, Bury, proved the two contracts as stated in the declaration; that the work called for by Bury's contract with Mathews was done in accordance with that contract, and that the hospital contracted for between Mathews and the city of St. Louis, was finished by Mathews according to the contract between him and the city of St. Louis, and was received by the latter in discharge of the contract. That afterwards, and on the 24th July, 1846, the appellant, Bury presented to the city engineer, in his office, an order of that date for $350, drawn by Mathews in favor of Bury, and that at the time of the presentation of this order, there was due from the city of St. Louis to Mathews, a sum of money on account of the building of the city hospital, exceeding the amount of said order. The plaintiff, Bury, also proved that notwithstanding this, the appellee paid out after the presentation of the said order as aforesaid, to divers persons, the whole of the said amount due by her to Mathews, except the sum of $76 23, which was paid last of all to Bury. That Bury having learned that the city had paid out as is stated above, the whole amount due by her to Mathews, except the said sum of $76 23, he induced Mathews to give him two orders for his first one of $350. One for $76 23 which was paid as aforesaid, and another for $173 77, which never was paid. Bury also proved by the city engineer, who made the contract on the part of the city with Mathews, that he was city engineer as well during the time of the building and completion of the hospital, as when the contract therefor was made, and that when the contract between Mathews and Bury was made, it was deposited in the city engineer's office, and remained there until it was brought into court by subpœna duces tecum in this case, and that it was so deposited in order that the appellant, Bury, might be paid as a sub-contractor, by the city of St. Louis. Moreover, that Mathews charged the city engineer that the amount coming to Bury under his contract should be retained by the city, and that the engineer promised Bury that it should be retained accordingly. That the mode of payment by the city of the price she had agreed to give for building said hospital, was by the city engineer drawing his order from time to time on the auditor, on the application or request of the contractor, Mathews, who upon such orders drew his warrant upon the treasurer, who paid out the money upon this warrant. That the city engineer was authorized to cause a hospital to be erected for the use of the city. Upon the close of the plaintiff's evidence, the court below instructed the...