Dinsmore v. Livingston Cnty.

• Decision Date: 31 May 1875
• Citation: 60 Mo. 241
• Parties: LYMAN W. DINSMORE, Respondent, v. LIVINGSTON COUNTY, Appellant.
• Court: Missouri Supreme Court

60 Mo. 241

LYMAN W. DINSMORE, Respondent,

v.LIVINGSTON COUNTY, Appellant.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Daviess Circuit Court.

Collier & Mansur, for Appellant.

I. A fair construction of the statute (Wagn. Stat., 783, § 2), does not require that the payor any more than the payee (who in notes never does) shall sign the writing.

II. Respondent, in open County Court, contracted with appellant to pay ten per cent. The contract was entered of record, and was necessarily in writing.

M. A. Low, for Respondent.

I. It required a promise in writing to make plaintiff liable to pay ten per cent. interest.

II. The instructions, declaring that the bridge must have been completed to the entire satisfaction of the road commissioner, were properly refused. As the county concluded to accept and complete the bridge, it did not matter whether the bridge commissioner was satisfied or not.

NAPTON, Judge, delivered the opinion of the court.

This was an action to recover a balance alleged to be due from Livingston county, on a contract for building a bridge across Grand River, at a point called Jimtown.

The petition averred a compliance with all the conditions of the contract.

The answer denied this and set up as a counter-claim, or alleged breaches of the contract sued on; first, that the bridge had not been completed according to the contract, and the specification therein, and that the county had to expend $1,724.06 to complete the bridge; second, that the county advanced to the plaintiff $1,000 as part payment, for which said plaintiff agreed to pay 10 per cent. interest until the completion of the bridge, and that the plaintiff has not finished the bridge, nor has it been accepted by the county, and there is due from plaintiff the sum of $650 as interest; third, that an additional $1,000 was advanced, for which interest is claimed as due, amounting to $640; fourth, that the plaintiff by the contract agreed to build a breakwater of stone, at the center pier of the bridge, but failed to do so, by which defendant was damaged $2,000; fifth, that plaintiff agreed to build the center pier of said bridge upon the bed rock of the river, if the same could be found, if not found, then to drive piles if bottom could be found in which they could be driven deep enough to hold them, otherwise to build a crib or platform of timber laid crosswise on each other to make a foundation; but plaintiff did not build said pier in either of said modes, but built on a foundation of cross timbers laid upon a sand bar; that by reason thereof the bridge was unsafe, and it became necessary to rip-rap the pier, which rip-rapping cost the defendant $1,412.25, and the defendant claims damages for $5,000; sixth, that the plaintiff by contract was required to complete the bridge on or before the first day of March, 1867, which was afterwards extended by defendant's consent to January 1st, 1868, but the bridge was never completed, and the defendant was damaged thereby in the sum of $2,500.

There was a replication filed to all the new matters alleged in the answer; and a trial before a jury, and the plaintiff had a verdict for $1,345.

It is unnecessary in the view we have taken of the case, to recite the testimony on the trial, which was somewhat conflicting.

The instructions given to the jury were generally correct.

The main questions of law presented by the record depend upon the propriety of the second and fourth instructions given for the plaintiff, and the rejecting of the sixth asked by defendant, and upon the exclusion by the court of certain orders entered on record by the County Court of Livingston County, in regard to the payment of interest on an advance of $2,000 to plaintiff before the completion of the bridge.

The second instruction given was, “The court instructs the jury that the term, ‘to the complete satisfaction of the commissioner,’ used in the contract, means according to the contract and specifications in a thorough and substantial manner.”

Where parties agree to abide by the decision or opinion of an architect, engineer or commissioner of any kind, in regard to the correspondence of the work done with the contract, in an action on such contract, the approval of the person selected by both parties to determine this, must be averred and proved. If the disapproval or rejection of the work arises from caprice or malice, and is really without foundation, such facts may be alleged and a recovery still be had in equity. (2 Sto. Eq.,...