Cornelius v. Grant

• Decision Date: 31 July 1843
• Citation: 8 Mo. 59
• Parties: CORNELIUS ET AL. v. GRANT AND ABBOTT.
• Court: Missouri Supreme Court

8 Mo. 59

CORNELIUS ET AL.

v.GRANT AND ABBOTT.

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM BOONE CIRCUIT COURT.

TODD, for Appellants. To reverse the judgment in this cause, the appellants rely on these points: 1. That, to establish a lien for the plaintiffs, the clerk's record of such lien is the best evidence, and no secondary evidence can be given, unless the absence of the other is accounted for. 2. That, on an inquiry of general assumpsit, counts for work done, evidence of a special contract by the same workmen, at the same time, and for like work, at a much less price, is competent evidence. 3. There was evidence conducing to show a special agreement between one of the plaintiffs, before the partnership, and Cornelius, to do the work, and that the work was done under it. In law, the plaintiffs could not recover in a joint action, and the court erred in not giving the instruction. 4. That, if there was such contract, the plaintiffs could not recover in the action, without setting forth such contract specially, and suing upon it. 5. That the verdict was given, and judgment rendered, without any evidence to show that any of the defendants, other than Cornelius, were the owners and possessors of the house at the time of suit brought, as alleged in the writ. 6. There is no allegation in the lien filed, of any contract with the owner of the house, for the plaintiffs to furnish materials and to do the plasterers' work. 7. There is no allegation in the lien filed, of the time when the demand accrued to the plaintiffs, and whether the demand was by special contract, or otherwise. 8. That the written evidence of the lien given in evidence should not have been allowed to the jury, to influence them in their retirement. 9. There is no evidence of any lien of record or on file in the court.

ROBARDS, for Appellee. It is urged, that the judgment below be affirmed, for the following reasons: 1. Because there is no material error in the proceedings below. The court below did right in refusing the instruction asked by the defendants, because there was no testimony to justify the instruction. 2. There was no evidence, either admitted to, or excluded from the jury, which could possibly prejudice the appellants in this cause. 3. The verdict is supported by the testimony given in the cause, and by the law. 4. The court did right in overruling the defendant's (below) motion in arrest. See Mo. Dig. 1835, p. 468, § 7.

TOMPKINS, J.

On the 4th day of December, in the year 1841, John Grant and Samuel Abbott filed, in the office of the clerk of the Circuit Court of Boone county, an account against William Cornelius, for work done on a house, and materials furnished for said Cornelius. The account, consisting of several particulars, amounted to $414 05. Cornelius was credited with $43 28, and at the foot of the account was this statement: “Balance, after allowing all credits and effects, $370 77.”

Then followed the affidavit, that the above is a true and just account against William Cornelius, and that the said account has accrued within the six months last past, before the filing of this account; and that the house, upon which the work was done, is situated in the town of Columbia, in the county of Boone, upon lot No. 99 of said town; and the plaintiffs pray that their above account may be held and considered a lien upon such property, &c.

The clerk of the Circuit Court then issued a scire facias, stating, that whereas Samuel Abbott and John Grant filed, in the office of the clerk of the Circuit Court of Boone county, an account for work and labor done as plasterers, on a building owned at the time by one William Cornelius, but now owned by one Moses U. Payne et al., &c.

The defendants pleaded nil debct and non-assumpsit, and, on trial, judgment was given for the plaintiffs, and their damages assessed to $370. The defendants moved for a new trial, assigning for reason. 1. That the court permitted illegal evidence to go to the jury. 2. That the court excluded competent evidence offered by the defendants. 3. That the court refused to give instructions which ought to have been given. 4. That the verdict was against law and evidence.

On the trial of the cause, the plaintiffs offered in evidence the account of their demand above-mentioned to have been filed with the clerk of the Circuit Court. The defendants objected to the reading of it in evidence; the court overruled the objection; and the defendants excepted to the decision. On the part of the plaintiffs, evidence was given, that they worked as partners on the house of Cornelius, and furnished materials.

A witness stated, that Grant, one of the plaintiffs, in the year 1840, before Abbott came to the country, and before he was a partner, made the contract with Cornelius, to do the plasterers' work to the house; the price of the work he did not know, but he understood from Grant and Cornelius, that Grant was to go on, and do what Cornelius wished him to do, and when Cornelius wished him to stop he was to do so, as part only was to be done that fall. Some work was done before Abbott came to work, but while they were partners, on the inside of the building; some of the inside plastering was done that season, the remaining part in the year 1841. Abbott joined Grant in the work, and they Worked together in doing all of the inside plastering; and Cornelius told witness that he preferred Abbott, as being the best workman. The witness saw the work after it was done, and thought it was done as well as work is usually done in this country. Several witnesses stated that the work was done by the plaintiffs, and that Cornelius superintended the work as owner of the house, and that the common price of such work was 37 1/2 cents per yard. On the part of the defendant, evidence was given to prove the work badly done, and that the plaintiffs had done a job of the same kind of work for twenty cents per yard. The court excluded the evidence of the plaintiffs having done work at twenty cents per yard, and the defendants excepted to the opinion in that respect.

The defendants moved the court to give the instruction following. If the jury believe that the contract for the plastering in controversy was made in the fall, 1840, between Cornelius and the plaintiff, Grant, then the plaintiffs cannot recover in this action, and they will find for the defendants. The plaintiffs objected, and the court refused the instruction, and the defendants excepted.

When the jury were about to retire, the plaintiffs moved the court that the jury be permitted to take out with them the paper writing first above mentioned, i. e., the account of the demand filed as above mentioned, to entitle them to a lien on the property. The court permitted it to be done, and the defendants excepted.

The appellants make these points: 1st. That, to establish a lien for the plaintiffs, the clerk's record of such lien is the best evidence, and no secondary evidence can be given, unless the absence of the other can be accounted for. 2nd. That, on an inquiry of general assumpsit, counts for work done, evidence of a special contract by the same workman, at the same time, and for like work, at a much less price, is competent evidence. 3rd. That, if there was evidence conducing to show a special agreement between one of the plaintiffs, before the partnership, and Cornelius, to do the work, and that the work was done under it, in law, the plaintiff could not recover in a joint action, and the court erred in not giving the instruction. 4th. That, if there was such contract, the plaintiffs could not recover in the action, without setting forth such contract specially, and suing on it. 5th. That the verdict was given, and judgment entered up, without any evidence to show that any of the...