Felty v. Dunlap

• Decision Date: 20 May 1918
• Docket Number: No. 12862.,12862.
• Parties: FELTY v. DUNLAP et al.
• Court: Missouri Court of Appeals

203 S.W. 651

FELTY v. DUNLAP et al.

No. 12862.

Kansas City Court of Appeals. Missouri.

May 20, 1918.

1. APPEAL AND ERROR — QUETIONS OF FACT—ADMISSIONS.

Where defendant fails to demur to plaintiff's evidence or to ask for a peremptory instruction to find for him, but joins plaintiff in asking for instructions on the issues, his conduct is an admission that there is sufficient evidence to take the case to the jury, and is binding on him on appeal.

2. DISMISSAL AND NONSUIT — COUNTERCLAIM—ABANDONMENT OF COUNTS IN COMPLAINT.

Where a complaint contains two counts and defendant pleads a counterclaim to the first count, the dismissal or abandonment of such count does not deprive defendant of his right to prosecute the counterclaim.

3. APPEAL AND ERROR —REVIEW—THEORY OF CASE.

Where a defendant tries his case on the theory that his counterclaim is no longer in the case, he cannot on appeal urge anything inconsistent therewith.

Appeal from Circuit Court, Boone County; D. H. Harris, Judge.

"Not to be officially published."

Action by Guy T. Felty against Frederick Dunlap and Florence H. Dunlap. From a judgment for plaintiff, defendants appeal. Affirmed as to Frederick Dunlap, and reversed as to Florence H. Dunlap.

Lee Walker, of Columbia, for appellants. Harris & Price and M. R. Conley, all of Columbia, for respondent.

BLAND, J.

The evidence on the part of plaintiff tends to show that on the 10th day of August, 1915, plaintiff entered into a written contract with defendant Frederick Dunlap, acting on behalf of himself and the defendant Florence H. Dunlap, by which plaintiff was to build a house for defendants. The house was constructed during 1915 and the early part of 1916. Defendants moved into the house about June 1, 1916, although the house was not finally completed until August 1, 1916. Payments were made for the construction of the house, but defendants had failed to pay for certain extra work done by plaintiff, amounting to $525.64. The evidence shows that the defendant Frederick Dunlap disputed the amount of this extra work, and also claimed damages by reason of the contract not having been performed according to the plans and specifications. Finally plaintiff put the matter in the hands of his attorney, Mr. M. R. Conley. Defendant Frederick Dunlap and Conley, after several interviews and letter writings, adjusted the whole matter in dispute by the defendant Frederick Dunlap agreeing to pay the sum of $381.35, less the cost of some insurance that was placed upon the building by the defendant Frederick Dunlap to insure the building while in course of construction. This suit was originally in two counts; the first count was for said sum of $525.64 on account of extra work, and the second count was for $381.35, being the amount of the settlement less the amount of said insurance. The answer of defendant Florence H. Dunlap was a general denial, and that of defendant Frederick Dunlap a general denial as to the second count and as to the first count a general denial and a counterclaim for damages for the alleged failure of plaintiff to build the house according to plans and specifications. Plaintiff thereupon dismissed the first count of his petition and went to trial on the second count. The jury returned a verdict in the sum of $366.35 against both defendants and judgment was accordingly entered thereon, and defendants have appealed.

Defendant Frederick Dunlap makes the point that there is no evidence to support the verdict. Plaintiff and defendant Frederick Dunlap submitted the case to the jury by instructions embodying their separate theories of the case, but said defendant failed to demur to the evidence or to ask a peremptory instruction requiring the jury to find for him. There was requested and refused a peremptory instruction on the part of Florence H. Dunlap. Defendant Frederick Dunlap having failed to demur to the evidence or to ask for a peremptory instruction to find for him, but having joined in asking the court to instruct upon the issues,...