Central Mantel Co. v. Thaler

• Decision Date: 20 October 1908
• Parties: CENTRAL MANTEL CO. v. THALER et al.
• Court: Missouri Court of Appeals

113 S.W. 220

133 Mo. App. 86

CENTRAL MANTEL CO. v. THALER et al.

St. Louis Court of Appeals, Missouri.

October 20, 1908.

1. PLEADING (§ 139)—COUNTERCLAIM—NECESSITY.

Where plaintiff sued on a quantum meruit for the reasonable value of certain mantels and materials furnished, and defendant pleaded only defects in the work, an instruction that if plaintiff failed to furnish proper mantels, or did not properly set them, the jury might deduct from the balance owing plaintiff such an amount as would compensate defendant owner for the damage he had sustained from plaintiff's default, was erroneous, as permitting defendant to recover on a counterclaim not pleaded for breach of contract.

2. CONTRACTS (§ 305) — PERFORMANCE—PAYMENT—EFFECT.

Where defendant, after having made specific objections to plaintiff's work in installing certain mantels, agreed to pay plaintiff the balance due on the contract if he would alter the work in accordance with the objections, that defendant gave plaintiff an order for the balance on the belief that the objections had been obviated would not estop him from thereafter objecting that the alterations had not been properly made.

3. CONTRACTS (§ 349)—ACTIONS—EVIDENCE— RES INTER ALIOS ACTA.

Where defendant objected to plaintiff's work in installing certain mantels because of broken tiles, evidence that other floor contractors whom plaintiff claimed had broken the tiles had agreed to pay plaintiff for relaying them was irrelevant.

Appeal from St. Louis Circuit Court; Jesse McDonald, Judge.

Action by the Central Mantel Company against Solomon Thaler and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

S. N. & S. C. Taylor, for appellant. E. E. Schnepp, for respondents.

GOODE, J.

This action was instituted to enforce a mechanic's lien for a balance alleged to be due plaintiff for furnishing and setting mantels and tiling in four flat buildings. The total charge for the mantels and the tiling around them was $900, and of this sum the owner of the premises, Thaler, paid $850. He refused to pay the balance because he found three faults in the material and workmanship after the mantels had been set. These faults were a patch glued on an upright column of one of the mantels, a warp or bend away from the wall of the room in one column of another mantel, and corners broken off some of the tiles. Thaler called attention to those faults, and plaintiff agreed to correct them and sent workmen to the building for the purpose. Testimony for plaintiff shows all the matters of which Thaler complained were altered to his satisfaction, and on May 15, 1906, he gave a written order for the balance of $50 to one of the Murphys, who are the other defendants in the case, and whose interest grows out of a deed of trust held by them on the premises. The order was given pursuant to an arrangement by which the Murphys were to advance money to pay obligations incurred by Thaler in building the houses. Thaler admitted giving the order, but sought to obviate the force of the circumstance as showing an acceptance of the work. He swore, as did plaintiff's witnesses, it was agreed between him and plaintiff the defects in the tiles and mantels should be made good, and that while he was on the premises one day a workman of plaintiff's came there to make the proper alterations, and he (Thaler), taking it for granted they would be made according to the agreement, signed the order for the balance of the price and sent it to plaintiff; but, on subsequently finding the defects had not been corrected, he stopped payment of the order. There is a conflict of evidence regarding whether the faults in the tiles and mantels were corrected as agreed, and also whether Thaler gave the order under the circumstances he swore and then stopped payment of it, or gave it after he had fully examined the alterations and expressed satisfaction with them. The action is quantum meruit for the reasonable value of...