East St. Louis Cotton Oil Co. v. Skinner Bros. Mfg. Co.

• Citation: 249 F. 439
• Decision Date: 08 March 1918
• Docket Number: 5001.
• Parties: EAST ST. LOUIS COTTON OIL CO. v. SKINNER BROS. MFG. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

249 F. 439

EAST ST. LOUIS COTTON OIL CO. v. SKINNER BROS. MFG. CO.

No. 5001.

United States Court of Appeals, Eighth Circuit.

March 8, 1918

Thomas W. White, of St. Louis, Mo. (S. W. Fordyce, Jr., and J. H Holliday, both of St. Louis, Mo., and Edward C. Kramer Rudolph J. Kramer, and Bruce A. Campbell, all of East St Louis, Ill., on the brief), for plaintiff in error.

John C Robertson, of St. Louis, Mo., for defendant in error.

Before SANBORN, CARLAND, and STONE, Circuit Judges.

CARLAND Circuit Judge.

Skinner Bros., as plaintiff, sued the Oil Company, as defendant, to recover $4,594.79, upon an account, a copy of which was attached to the complaint. The items of the account consisted of charges for time, labor, and material. The defendant answered the complaint by a general denial and counterclaim. The counterclaim alleged that the plaintiff and defendant on or about February 15, 1916, entered into an agreement whereby plaintiff agreed, for the sum of $1,400, to build, install, and erect at defendant's place of business in a good and workmanlike manner and with reasonable expedition a ventilating system to remove dust from the atmosphere of defendant's building and escaping bran dust from cyclone collectors already constructed. As a part of said agreement defendant agreed to erect a platform of concrete and steel upon which to build the ventilating system, and to furnish the fans and motors to be used in the construction of the same; that defendant erected and built the platform, above mentioned, and plaintiff commenced to erect the dust collector or ventilating system, and worked on same until April 14, 1916, when it declined to work further and abandoned its contract; that the unfinished dust collector was of no value to defendant; that, at the time plaintiff was working upon the dust collector, it was also doing other work for defendant, for which defendant paid the plaintiff from time to time, according to time, labor, and material; that on or about March 1, 1916, plaintiff presented defendant with a statement of account in the amount of $4,291.05, supposed to cover work as last above mentioned; that defendant paid said account, believing that it did cover such work; that defendant subsequently discovered that plaintiff, without the knowledge and consent of defendant, included in said statement charges for time, labor, and material for the construction of the dust collector, amounting to $1,341.60; that no part of the contract price of $1,400 agreed upon for the construction of the dust collector was to be paid until the same was completed, and performed satisfactorily its duty as a dust collector; that by reason of the payment of said sum of $1,341.60, on the dust collector contract, the erection of the concrete platform, supplying, unloading, and erecting fans and motors, erecting the steel work, and taking out said work and material, defendant had been damaged in the sum of $5,000, for which judgment was prayed against the plaintiff.

Plaintiff replied to the counterclaim, alleging that there was no contract to build the dust collector for $1,400, but that plaintiff was employed to erect a ventilating system, called also a dust collector, upon an open account basis and for a reasonable compensation, and that plaintiff refused to complete the ventilating system or dust collector, for the reason that defendant refused to make payment on account. The allegations of the pleadings are not given as they were pleaded, and some are not given at all; the purpose of stating their substance being to illustrate the verdict returned by the jury. The...