Davis v. Drew
| Decision Date | 08 June 1908 |
| Citation | 111 S.W. 869,132 Mo.App. 503 |
| Parties | BERNIS B. DAVIS, Respondent, v. JAMES W. DREW, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Saline Circuit Court.--Hon. Samuel C. Davis, Judge.
REVERSED AND REMANDED.
Robert M. Reynolds and Thomas H. Harvey for appellant.
(1) Having based his cause of action upon contract, it became necessary for him to establish the existence of the same by the evidence before he could recover upon the same. This we claim he did not do, and that for such reason the verdict has no evidence to support it. Nordyke & Marmon Co. v Kehlor, 155 Mo. 658; Robertson v. Shepherd and Stone, 160 Mo. 375; Leveredge v. Lipscomb, 36 Mo.App. 634; Cole v. Armour, 154 Mo. 351. (2) In order to make a contract there must be a meeting of the minds of the contracting parties, and an agreement to the same thing in the same sense. Eads v. Carondelet, 42 Mo 117. Brown v. Rice, 29 Mo. 322; Robinson v Railroad, 75 Mo. 498; Bruner v. Wheaton, 46 Mo 366; Green v. Cole, 103 Mo. 76; Nordyke & Marmon Co. v. Kehlor, 155 Mo. 655; James v. Fruit Jar Co., 69 Mo.App. 207; Batavia v. Railroad, 103 S.W. 140. (3) It is not enough that one of the parties may have understood it a certain way--both minds must have concurred and assented to it in the same way and in the same sense. Robison v. Estes, 53 Mo.App. 585; Barton Bros. v. Hunter, 59 Mo.App. 619; James v. Fruit Jar Co., 69 Mo.App. 213. (4) To make a concluded contract, the acceptance of a proposal must be unequivocal, unconditional and without any variance of any sort between it and the proposal. James v. Fruit Jar Co., 69 Mo.App. 214; Brewington v. Mesker, 51 Mo.App. 348; Esterly Maeline Co. v. Creswell, 59 Mo.App. 471; Haubelt Bros. v. Milling Co., 77 Mo.App. 681.
S. B. Burk and D. D. Duggins for respondent.
(1) The case was fairly submitted to the jury upon the issues as follows: (a) The plaintiff contending that he furnished the hands and built the house for daily wages. (b) The defendant contending that he had made a special contract to have the house built for $ 350. (2) The defendant is attempting to try the case in this court upon a theory not raised in the trial court, and neither was the attention of the trial court called to the theory now introduced, either by a demurrer to the evidence, peremptory instruction or in the motion for a new trial. Gale v. Car Co., 177 Mo. 455; Dice v. Hamilton, 178 Mo. 90; McDonald v. Tittman, 96 Mo.App. 541; Steele v. Johnson, 96 Mo.App. 156. (3) The evidence is positive and conclusive that the minds of the litigants met in the proposition that the plaintiff was to build a house for defendant.
The plaintiff's action is based on an alleged contract whereby he agreed with defendant to erect for him a dwelling house for which he was to receive a certain compensation for each day he worked, on the ten-hour schedule, and that he was to receive a certain compensation for each of his workmen for their day's work. That he erected the house and that the aggregate of his own work and of his workmen at the prices agreed upon was the sum of $ 700.85. He admitted a credit of $ 125 paid by defendant.
The defendant in his answer denies the contract as stated by plaintiff, and alleges that the plaintiff agreed to erect the house in question for the sum of $ 350; that after the contract was made, he employed plaintiff to perform further work in the building, of a porch for which there was no agreement as to what should be paid plaintiff, but he alleges $ 50 was a reasonable price for its construction. He claims credit in addition to said sum of $ 125, for $ 4.05 paid plaintiff for a certain window, and also for $ 46 balance for the board of some of plaintiff's workmen. He admits a balance due plaintiff of $ 225.06. The judgment was for plaintiff for the amount of his claim and the defendant appealed. The error complained of is, that, the plaintiff failed to show that there was a contract for the work as alleged in his petition, but that he was permitted to recover on quantum meruit or the reasonable value of his services; and that there was error, to the defendant's prejudice, in the admission of testimony as to the reasonable value of such services.
The evidence went to show that there was an agreement between the parties that plaintiff was to put up a building for defendant on a certain plan and of certain dimensions for the sum of $ 350, but it was shown that the plan and dimensions of the house were changed, and the evidence was conflicting as to whether or not plaintiff agreed to the change, and the testimony of the workmen is to the effect that the house was not constructed according to said plans. The evidence of the plaintiff was to the effect that there was no contract between the parties as to how much defendant was to pay plaintiff by the day for his own work...
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