Clapper v. Mendell

• Decision Date: 06 August 1902
• Citation: 96 Mo. App. 40,69 S.W. 669
• Parties: CLAPPER v. MENDELL.
• Court: Missouri Court of Appeals

69 S.W. 669

96 Mo. App. 40

CLAPPER v. MENDELL.

Court of Appeals at St. Louis, Missouri.

August 6, 1902.

COUNTERCLAIM — FAILURE TO GIVE INSTRUCTIONS.

1. Defendant in action for work and materials having pleaded part payment, and counterclaimed for inferior work and materials, and given evidence in support thereof, failure to give a correct requested instruction, or an equivalent, in regard to his right to credit for payments and recovery for damages, is error.

Appeal from circuit court, Newton county; Henry C. Pepper, Judge.

Action by Merritt Clapper against David Mendell. Judgment for plaintiff, and defendant appeals. Reversed.

White & Clay, for appellant. Jas. H. Pratt, for respondent.

GOODE, J.

The petition in this case declared on a quantum meruit to recover an indebtedness alleged to be due to the plaintiff for materials furnished and work done by him at the request of the defendant in building a house, and the sum for which judgment was prayed was $451.45. The allegations show that it was originally intended to enforce a mechanic's lien against the property, but for some reason this purpose was abandoned, and only a money judgment insisted on. The answer set up a special contract, alleged to have been made by the parties, by which the plaintiff agreed to furnish the material and do the work of building a two-story house on defendant's lot for $475, and another special contract by which plaintiff also agreed to build an addition or second story to an old building standing on said lot for which he was to receive $50 from the defendant; the latter furnishing the materials. In addition to pleading those special contracts, the answer set up various payments, amounting to $552.45, and claimed that payments had been made in excess of the contract price to the amount of $27.55, for which balance judgment was prayed against plaintiff. There was also a counterclaim pleaded, based on allegations that inferior materials were furnished by the plaintiff, inferior work done by him, and that he did not complete the house within the time specified; all to defendant's damage in the sum of $230, which he sought to recoup. The evidence of both sides showed that contracts were made by the parties as alleged in the answer, but the evidence for the plaintiff tended to prove that changes and alterations were made in the progress of the work by order of the defendant, which entailed considerable additional outlay on the premises, for which he was to receive extra payment; and also that both the materials and work done and furnished by him were good. The evidence for defendant, on the contrary, tended to sustain the statements of the answer in regard to the inferior quality of the work and materials, and also the averment as to the amount which had been disbursed by the defendant, either in payment to plaintiff in person or for bills contracted by him. The question on this appeal is as to the propriety of the rulings of the trial court on the instructions which were given and refused, and, without setting them all out in the opinion, for they were quite numerous, we state that several which were offered by both parties seem to have been carelessly drawn, and either ignored the well-settled law governing cases of this kind, or presented it in such confused language as would naturally mislead the jury. When buildings or other improvements have been placed on the property of another by a contractor, even though there was a special contract between the parties which the contractor did not perfectly comply with, he is entitled to recover the reasonable value of the improvements, not to exceed the contract price, because of the benefit rendered to the owner; and this has been the law in this state throughout its history. Thompson v. Allsman, 7 Mo. 531; Yeates v. Ballentine, 56 Mo. 530; Moore v. Manufacturing Co., 113 Mo. 98, 20 S. W. 975. The trial court instructed the jury on that theory, but failed to clearly submit to them the right of defendant to be credited with payments he had made, and to recover on his counterclaim to the extent the jury might find he had made it good. The first and second instructions given at the request of plaintiff will...