Downey v. Burke

• Decision Date: 31 March 1856
• Citation: 23 Mo. 228
• Parties: DOWNEY et al., Respondents, v. BURKE, Appellant.
• Court: Missouri Supreme Court

23 Mo. 228

DOWNEY et al., Respondents,

v.BURKE, Appellant.

Supreme Court of Missouri.

March Term, 1856.

1. Where there is a special contract to do certain work, and there is a failure to perform the work according to the contract, there can be no recovery had upon the contract.

2. Where, however, useful labor is actually performed, and is received by the employer, an obligation is thereby created to pay the reasonable value of the services rendered, taking into consideration and making allowance for the damage resulting from the breach of the contract.

Appeal from St. Louis Law Commissioner's Court.

This was an action originally commenced before a justice of the peace. The account filed before the justice was for work done and materials furnished in the construction of a stone wall by plaintiffs. The cause was appealed to the Law Commissioner. The performance of the work was proved on the trial, and its value; also that during its progress defendant made payments upon the same. There was also evidence tending to show a failure on the part of plaintiffs to perform the work according to contract, in that the wall, when built, did not correspond with the grade of the street, as it was agreed it should. The cause was tried by the court sitting as a jury. The following instruction or declaration of law was asked by the defendant and refused by the court: “If the court, sitting as a jury, finds from the evidence that plaintiffs made a contract with defendant to build a good substantial wall, even with the grade of the street, on defendant's lot, in St. Louis, and that plaintiffs failed to perform their contract, plaintiffs can not recover.”

Judgment was rendered for plaintiffs. Exceptions were duly taken by defendant. Defendant appealed to this court.

A. W. Lewis, for appellant.

C. C. Carroll, for respondents.

LEONARD, Judge, delivered the opinion of the court.

There was no error in the refusal of the defendant's instruction that, “If there were a special contract and the plaintiff had failed to complete the work, he could not recover.” Where there is a special contract, and the job is to be paid for, the party who has failed to comply, on his part, certainly has no right of action upon the contract, and, in such case, if there be nothing more in the transaction, the express contract excludes any implied contract. It is, however, generally true in morals, that one who is made richer by the act of another, done without any purpose of donation on the part of the...