Cap-Keystone Printing Co. v. Tallman Co.

• Decision Date: 06 June 1944
• Docket Number: No. 26441.,26441.
• Citation: 180 S.W.2d 802
• Parties: CAP-KEYSTONE PRINTING CO. v. TALLMAN CO.
• Court: Missouri Court of Appeals

180 S.W.2d 802

CAP-KEYSTONE PRINTING CO. v. TALLMAN CO.

No. 26441.

St. Louis Court of Appeals. Missouri.

June 6, 1944.

Appeal from Circuit Court, St. Louis County; Amandus Brackman, Judge.

"Not to be reported in State Reports."

Action by Cap-Keystone Printing Company against Tallman Company for moneys due on printing contract wherein the defendant filed a counterclaim for breach of contract. From a judgment for plaintiff for $200 on plaintiff's cause of action and in favor of plaintiff on defendant's counterclaim, the defendant appeals.

Judgment reversed and cause remanded.

Hall & Todd, of St. Louis, for appellant.

John K. Lord, Jr., of St. Louis, for respondent.

SUTTON, Commissioner.

This suit was commenced in a justice of the peace court. Plaintiff filed a statement in the justice court on one of its billheads in which it billed defendant for printing four thousand pages for a loose-leaf catalogue, $240, plus $4.80 sales tax, total $244.80. Defendant filed an answer, pleading a rescission of the contract and setting up a counterclaim for damages, for failure of plaintiff to comply with the contract under which the catalogue pages were printed.

In the justice court there was a judgment in favor of defendant on plaintiff's cause of action and in favor of plaintiff on defendant's counterclaim. From this judgment both parties appealed to the circuit court.

The trial anew in the circuit court, with a jury, resulted in a verdict in favor of plaintiff for $200 on his cause of action and in favor of plaintiff on defendant's counterclaim. Judgment was given accordingly, and defendant appeals.

Defendant urges a reversal of the judgment on the ground that the verdict is not responsive to the issues as made by the pleadings, the evidence, and the instructions.

The statement filed with the justice says nothing as to a contract fixing the price of the work to be done, nor as to the reasonable value of the work. At the commencement of the trial defendant's counsel stated to the court that from the statement filed by plaintiff with the justice he was in doubt as to whether plaintiff was suing on quantum meruit or on an express contract, and that he was entitled to know upon which theory plaintiff was suing. Thereupon, plaintiff's counsel stated that plaintiff was suing on an express contract, which would be put in evidence as a part of plaintiff's case. To this defendant's counsel responded, "Very well, just so we understand what issues are to be met by the defendant in the trial of this case here." Thereupon, the court said: "You may proceed gentlemen." The case was then tried throughout by both parties on the theory that the suit was upon an express contract, fixing the price of the work to be done.

Manifestly, the statement filed by plaintiff in the justice court is such as will, when considered in connection with the evidence, support the theory, adopted by the parties, that the suit is upon an express contract. Whitworth v. Monahan's Estate, Mo.App., 111 S.W.2d 931; In re Hukreda's Estate (St. Louis Union Trust Co. v. Seketer), Mo.Sup., 172 S.W.2d 824; United States Fidelity & Guaranty Co. v. Mississippi Valley Trust Co., Mo.App., 153 S. W.2d 752; Klein v. Terminal R. Ass'n, Mo.App., 268 S.W. 660; Warder v. Seitz, 157 Mo. 140, 57 S.W. 537; Cosgrove v. Burton, 104 Mo.App. 698, 78 S.W. 667; McDaniel v. Emmick, 149 Mo.App. 274, 130 S.W. 129; Chicago, Peoria & St. L.R. Co. v. Bay Shore Lumber Co., 140 Mo.App. 52, 119 S.W. 973; Glover v. Henderson, 120 Mo. 367, 25 S.W. 175, 41 Am.St.Rep. 695; Legg v. Gerardi, 22 Mo.App. 149, loc. cit. 158; Mansur v. Botts, 80 Mo. 651; Balsano v. Madden, Mo.App., 138 S.W.2d 660, loc. cit. 662; C. H. Robinson Co. v. Frissell, Mo.App., 132 S.W.2d 1049.

The case having been tried on the theory that the suit was on an express contract fixing the price to be paid for the work, it should be heard and disposed of here on that theory.

The evidence shows that the work to be done under the contract was what is known as offset printing. In that process a photograph is taken of the desired object and the photograph is in turn reproduced in the same manner as if it were printed from type.

The evidence for the plaintiff shows that the work was done by plaintiff in substantial compliance with the contract.

The evidence for the defendant shows failure to comply with the contract in some respects.

The price of the work as agreed upon in the contract was $480, but by inadvertence plaintiff omitted from its statement filed with the justice one-half of the catalogue pages, so that the amount sued for was only $240, plus $4.80 sales tax, or a total of $244.80.

Plaintiff several times during the trial asked leave to amend its statement so as to include the pages inadvertently omitted. The court refused to leave to so amend the statement on the ground that it would exceed the jurisdiction of the justice, which is $300.

At the instance of the plaintiff the court instructed the jury that if they found that the work was done in a manner substantially complying with the instructions given to plaintiff by defendant, then they should find for plaintiff and against defendant for such sum as they found to be due plaintiff under the contract with defendant, but not to exceed $244.80. This must have meant to the jury that the contract price was controlling in determining the amount of plaintiff's recovery. The jury were fully advised that the contract price for the entire work was $480 and that one-half of the work was inadvertently omitted from the statement filed with the justice, and they must have understood that the amount of plaintiff's recovery for the work sued for should be one-half of the contract price for the entire work.

The court of its own motion instructed the jury that if they found that plaintiff failed to substantially comply with the terms of the contract and that defendant within a reasonable time after the delivery of the catalogue pages to it notified ...