Eyerman v. Mount Sinai Cemetery Ass'n of St. Louis

• Decision Date: 31 January 1876
• Citation: 61 Mo. 489
• Parties: GOTTLIEB EYERMAN, Appellant, v. THE MOUNT SINAI CEMETERY ASSOCIATION OF ST. LOUIS, Respondent.
• Court: Missouri Supreme Court

61 Mo. 489

GOTTLIEB EYERMAN, Appellant,

v.THE MOUNT SINAI CEMETERY ASSOCIATION OF ST. LOUIS, Respondent.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

H. D. Laughlin, for Appellant.

I. This was not a suit on a special contract. The petition was not founded on the contract at all. (Marsh vs. Richards, 29 Mo., 99.) The special agreement was merely inducement. (Boyd vs. Camp, 31 Mo., 163.)

II. Supposing the materials were not furnished in accordance with the contract, defendant having accepted and used them, is liable for their actual value. (2 Pars. Contr., Part. II., § 5; Yeats vs. Ballentine, 56 Mo., 530.)

A. Binswanger, with T. C. Reynolds, for Respondent.

The decisions of our Supreme Court conclusively show that if a suit is brought on a special contract, and no quantum meruit count stated in the petition, and no variance of the contract or its terms shown to have been agreed upon between plaintiff and defendant, and plaintiff fails to show a strict compliance with the terms of the contract, or a legal excuse for its non-perfermance, that in such case the plaintiff is not entitled to recover. (Helm vs. Wilson, 4 Mo., 41; Lee vs. Ashbrook, 14 Mo., 378; Downey vs. Burke, 23 Mo., 228; Lowe vs. Sinklear, 27 Mo., 309; Marsh vs. Richards, 29 Mo., 99; Creamer vs. Bates, 49 Mo., 523; Yeats vs. Ballentine, 56 Mo., 530; Cutter vs. Powell, 2 Smith Lead. Cas., p. 44; Morford vs. Martin & Ambrose, 6 Mon., 609; S. C., 3 J. J. Marsh, 89; Taft vs. Inhab. of Montague, 14 Mass., 282; Gregory vs. Mack, 3 Hill, [N. Y.] 380.)

WAGNER, Judge, delivered the opinion of the court.

The petition stated that the defendant was indebted to the plaintiff in the sum of two thousand five hundred and ninety dollars and ninety-three cents, for work and labor done and materials furnished, which were then set out at the prices agreed upon in the writings afterwards referred to. It was then alleged that the work and labor were done, and the materials were furnished under the terms and conditions of a certain instrument of writing, executed by the plaintiff and defendant, and which was produced and shown to the court; that plaintiff kept and performed all the terms and conditions of the instrument of writing to be kept and performed by him; that he furnished the materials in the writing specified of a proper and suitable character, and did the work therein specified in a good and workmanlike manner, all of which was done under the supervision of the engineer of the plaintiff, and accepted by him, etc. The answer was a denial of all the allegations in the petition.

At the instance of the plaintiff the court in effect declared the law to be, that although some of the material was not what the contract required, yet the plaintiff should be allowed what it was reasonably worth. And there was a refusal to instruct for the defendant, that unless the plaintiff had performed his part of the contract, in manner, form and quality as specified in the agreement, he could not recover.

There was a judgment at special term for plaintiff, which was reversed at general term, and the cause was appealed to this court

In Yeats vs. Ballentine (56 Mo., 530) all the cases in this court bearing on the question here...