Dysart-Cook Mule Co. v. Reed & Heckenlively.

• Decision Date: 17 October 1905
• Citation: 89 S.W. 591,114 Mo. App. 296
• Court: Missouri Court of Appeals
• Parties: DYSART-COOK MULE CO. v. REED & HECKENLIVELY.

89 S.W. 591

114 Mo. App. 296.

DYSART-COOK MULE CO. v. REED & HECKENLIVELY.

St. Louis Court of Appeals. Missouri.

October 17, 1905.

1. TRIAL — QUESTION FOR JURY—UNCONTRADICTED EVIDENCE OF PLAINTIFF.

Where plaintiff's oral evidence was not contradicted, but no fact entitling him to recover was admitted, the interest of plaintiff in the event of the suit was sufficient to require the submission of the case to the jury.

2. CONTRACTS—BREACH — ACTION — INSTRUCTIONS.

In an action by the owner of a building against the architects, the court instructed that the uncontradicted facts showed that defendants were engaged to draw plans for and superintend plaintiff's building; that thereby they guarantied that they had the necessary skill and would use proper care in drawing said plans, and if they did not possess such skill, or if they were negligent, causing loss to plaintiff in the particulars complained of by him, defendants were liable. Held, that there was nothing vague or uncertain in the instruction.

3. APPEAL—RIGHT TO REVIEW—INSTRUCTIONS.

Where a party did not request that terms used in an instruction be explained to the jury, he could not complain of the instruction on that ground for the first time on appeal.

4. CONTRACTS — BREACH — ACTION —INSTRUCTIONS.

In an action by the owner of a building against the architects, the petition alleged that defendants either drew the plans so as to call for the erection of walls higher than they should have been, or, having drawn them properly, negligently built the walls higher than they should have been; and the court instructed that defendants guarantied by their engagement that they possessed the necessary skill and would use proper care, and that if they did not possess such skill or if they were negligent, thereby causing a loss in the particulars complained of, they were liable. Held, that the instruction was not erroneous as failing to present an allegation of the petition that defendants represented the plans to be of a character different from what they were in fact; there being no basis for any such instruction.

5. NEW TRIAL—MISCONDUCT OF JURORS—APPLICATION OF PERSONAL KNOWLEDGE.

The issue was whether defendants had properly constructed a certain barn for plaintiffs, and it appeared, on a motion for a new trial, that two of the jurors had passed by the barn and looked around, and a third entered it; but the jurors filed counter affidavits showing that two of them passed by the barn because drawn that way on business, but that they took no measurements and made no estimates, and an affidavit of the other stated that he had been in the barn to see a man on business, but took no measurements or estimates. Held, that there was no error in denying the motion.

6. APPEAL—REVIEW — CONFLICTING EVIDENCE —MOTION FOR NEW TRIAL—DECISION.

Where, on a motion for a new trial on the ground of misconduct of a juror, the evidence is conflicting, the judgment of the trial court will not be disturbed on appeal.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by the Dysart-Cook Mule Company against Reed & Heckenlively. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Delaney & Delaney, for appellant. V. O. Contrane, for respondents.

BLAND, P. J.

Such extracts of the evidence as the plaintiff has seen fit to quote in its statement of the case furnish an apology for the abstracts of the record which the statute and rules of the court require it to furnish. While these quotations are meager, they furnish a brief history of the case. It appears that plaintiff is a corporation and owns a lot on the corner of Olive and Campbell streets, in the city of Springfield, Mo., fronting 81 feet on Olive and running back north 172 feet on Campbell. In the year 1903 plaintiff employed the defendants (a copartnership of architects) to draft plans for and superintend the erection of a two-story brick mule barn to cover the entire lot, and gave instructions to the defendants about the elevations and arrangement of the barn. Defendants drafted the plans, and prepared specifications for the construction of the barn, and superintended its erection. It is alleged in the petition that either the plans and specifications were unskillfully and negligently drawn, or, through the negligence and unskillfulness of defendants in the erection of the barn, the plans were departed from to the damage of plaintiff. From what we can gather from the extracts of the evidence, the entrance to the barn is on Olive street through an 11-foot door in the front wall. Plaintiff's officers testified that it was agreed and understood between plaintiff and defendants, and that the plans so show (plans not before us), that there was to be a 3-inch elevation in the entrance from the outside to the inside of the wall (a distance of 13 inches), and from the inside of the wall an elevation of 6 inches in 2 feet of floor space; that from the terminus of the elevation on the inside it was agreed, and the plans so show, a dead level of floor space 12 feet in width to the rear wall of the building, which space was to be fenced off as a mule alley, and be used for the purpose of showing horses and mules for sale. It appears that, on account of an ordinance of the city of Springfield in regard to sidewalks, it was afterwards agreed to increase the elevation in the doorway 2½ inches to conform to the grade of Olive street. Olive street runs east and west, and Campbell street north and south. There is a slope of 8 feet from east to west in Olive street in the 81 feet fronting plaintiff's lot, and a 10-foot slope or fall to the north on Campbell street in the distance it bounds plaintiff's lot. It thus appears that the curb-stone on the northeast corner of Olive street is the highest established grade point in the streets bounding the lot. From this grade point the defendants contend they took the elevation for the barn floor and basement walls with the knowledge and by the consent of plaintiff, and that this was done in order to get the proper height for the basement. On the other hand, the plaintiff's evidence tends to show that the top of the curbstone fronting the entrance to the barn was the point from which the elevation was to be taken, and that the plans show this fact. The basement is 60 feet long, and is entered from Campbell street. It appears that the Olive street entrance is 30 inches above the curb fronting the entrance, and on account of this elevation it is difficult to draw loads of feed into the barn; and plaintiff's evidence is that the floor of the mule alley is not level, but is on an incline, and, on account of this incline, the alley is not suitable for exhibiting mules and horses for sale. Defendants testified that the plans for the barn were repeatedly changed with the consent of the plaintiff, while the basement walls were in course of erection, and that these changes were necessary to procure the height of basement desired by the plaintiff's officers, who insisted on a 9-foot basement, and that these changes were made after a great part of the basement walls had been laid. The court gave instructions to which plaintiff objected, but asked none in its behalf. The verdict was for the defendants.

1. Plaintiff insists that it was entitled to at least nominal damages, but it did not so move the court to instruct the jury, and there is nothing in the pleadings (the answer was a general...