Clemens v. Laveille

• Decision Date: 30 June 1835
• Court: Missouri Supreme Court
• Parties: CLEMENS v. LAVEILLE & MORTON.

4 Mo. 80

CLEMENS

v.LAVEILLE & MORTON.

Supreme Court of Missouri.

June Term, 1835.

ERROR FROM ST. LOUIS CIRCUIT COURT

WASH, J.

This was an action of assumpsit brought by the defendants in error against the plaintiff in error to recover the price of the work done; and materials furnished by the defendants in building a warehouse for the plaintiff in error. Laveille & Morton got judgment in the Circuit Court, to reverse which Clemens has come with his writ of error to this court. The defendants in error had finished off the building by putting in tin gutters. The plaintiff in error contended that copper gutters should have been furnished. Upon the evidence given the jury found for the defendants in error, and the plaintiff in error moved the Circuit Court to set aside the verdict and grant him a new trial, which motion was overruled, and now the only question presented for our consideration is, did the Circuit Court err in overruling the motion for a new trial? The evidence on this point as preserved in the bill of exceptions is not very clear or satisfactory. On the part of the plaintiffs below, no evidence was given as to the kind of material of which the gutters were to have been made. On the part of the defendant below, it was proved by one witness who had contracted with the defendants in error to put up for him a building similar to the one erected for the plaintiff in error and for the same price, that in a conversation with Mr. Morton, one of the partners and plaintiffs below, and in reply to objections raised by the witness to the method proposed for roofing the buildings, that “Mr. Morton still insisted and said that he, Morton, would put up copper gutters extending between four and five feet up the roof to obviate the objections of witness” and “that his impression from the whole conversation between Morton and himself was, that copper gutters were to be put upon each tenement.” One other witness who had been employed by Bernard Pratte to put up a building adjoining the buildings erected by the defendants in error, and who had objected to the method proposed for roofing the several buildings stated “that Morton desired him to urge Pratte to make the change such as was made in the houses of Chouteau, Kerr & Clemens, that he (witness) stated to Morton the impossibility of securing roofs so constructed from leaking, owing to the great quantity of water collected in gutters so formed, that Morton replied he was going to put copper gutters on those...