Farley v. Pettes

• Decision Date: 05 February 1878
• Parties: PETER FARLEY, Respondent, v. HENRY PETTES ET AL., Appellants.
• Court: Missouri Court of Appeals

5 Mo.App. 262

PETER FARLEY, Respondent,

v.HENRY PETTES ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Feb. 5, 1878.

1. The question as to whether a contract, alleged to have been made, was made, is a question for the jury, to be determined from the evidence of what the parties said and did, and not from the understanding of one of the parties of what he said or did.

2. Where a party to an oral contract has knowledge that the other party places a particular construction upon a doubtful term, and allows work to proceed on the basis of a perfected contract, without explanation, he will be estopped from denying the contract as understood by the other party.

3. Where the verdict is plain, and there can be no doubt as to its meaning, the fact that the jury failed to add interest to principal is immaterial. The clerk may make the addition, and enter judgment for one sum.

4. A judgment will not be reversed merely because evidence was introduced out of its proper order.

APPEAL from St. Louis Circuit Court.

Reversed, and judgment.

HITCHCOCK, LUBKE & PLAYER, for appellants, cited: 1 Ph. on Ev. 748; Tennant v. Hamilton, 7 Cl. & Fin. 122; Carter v. Pryke, Peake, 95; Iron Mountain Bank v. Murdock, 62 Mo. 74.

M. KINEALY, for respondent: The evidence complained of was part of the res gestæce, and competent.-- Sill v. Ruse, 47 Cal. 341; Morse v. Diebold, 2 Mo. App. 163; Owen v. Northup, 30 Wis. 491. The order in which testimony is introduced is a matter within the discretion of the trial court.-- The State v. Porter, 26 Mo. 209; Dozier v. German, 30 Mo. 216; Rucker v. Eddings, 7 Mo. 115. The form of this verdict is no ground for a new trial.--Hill. on New Tr. 133, sec. 13.

HAYDEN, J., delivered the opinion of the court.

This is an action to recover the sum of $2,100, which the plaintiff alleges the defendants agreed to pay him for building a sewer. The petition avers that the plaintiff built the sewer at the request of the defendants, and that they agreed to pay for it. The defendants denied that the work was done for them, and alleged that it was done by the plaintiff for the St. Louis Tunnel Railroad Company, and with the express understanding that the company would be liable for the cost of building the same. It appeared on the trial, that the defendants were owners of real estate on the street, in St. Louis, under which the sewer was to be built; that the Tunnel Company, being under obligations to build the sewer, said to defendants that it would do so, but could not then build it, as it was completely occupied in building its tunnel; that it would give its note in payment for building the sewer if the defendants, or others, would get the same constructed. There is some discrepancy here, as on some other points, between the testimony of the president of the company and that of the defendants, the former stating that he left the defendant Leathe to make his arrangement with the contractor, while the latter states that it was his part to make a contract between the plaintiff and the company. Leathe was, however, authorized to give the company's note for the work; and the real dispute is, whether the agreement between the plaintiff and the defendant Leathe was that the plaintiff was to look to the defendants for his money for building the sewer, or was to take the company's note in payment. The verdict of the jury in favor of the plaintiff establishes that the former was the fact; and the question here is, whether there was error in the action of the court below in its rulings as to evidence or instructions.

The instructions given by the court below, at the request of the respondent and of the appellants respectively, present simple and obvious propositions of law, representing the two different theories. The following was given at the request of the appellants:--

“If the jury shall believe, on the whole evidence, that Farley agreed with Leathe to build the sewer in question, and to take the Tunnel Company's note for the amount of his bid for the work, then the jury must find a verdict for the defendants.”

This, in connection with the others which were given, sufficiently determined the law of the case, and presented the real issues which the jury were to pass upon. There was no need of the following, which the court gave, adding, however, of its own motion, the words in italics; and it would have been better and less confusing to the jury for the court to have refused the instruction as asked:--

“That even though the jury should believe that Farley expected Pettes & Leathe to pay him for the sewer, and did not understand or agree that he would receive the Tunnel Company's note in payment for the work, yet if the jury shall also believe from the evidence that the defendant Leathe never did agree that he or his firm would pay for building the sewer, but understood, as a result of his conversations with Farley, that Farley was to take the Tunnel Company's note in payment for it, then the jury must find verdict for the defendants, unless Leathe knew what Farley's understanding was.”

On the evidence, it was plain that the agreement was either that the money should be paid or the note of the company taken for building the sewer, and this was the single...