Ferd Bauer Engineering & C. Co. v. Arctic Ice & S. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Reynolds
• Citation: Ferd Bauer Engineering & C. Co. v. Arctic Ice & S. Co., 172 S.W. 417, 186 Mo. App. 664 (Mo. App. 1915)
• Decision Date: 05 January 1915
• Docket Number: No. 13560.,13560.
• Parties: FERD BAUER ENGINEERING & CONTRACTING CO. v. ARCTIC ICE & STORAGE CO.

172 S.W. 417

186 Mo. A. 664

FERD BAUER ENGINEERING & CONTRACTING CO. v. ARCTIC ICE & STORAGE CO.

No. 13560.

St. Louis Court of Appeals. Missouri.

January 5, 1915.

Rehearing Denied January 19, 1915.

1. TRIAL (§ 329) — VERDICT — RESPONSIVENESS TO ISSUES AND INSTRUCTIONS.

Plaintiff sued on a building contract, alleging performance and part payment, and demanding judgment for the balance. Defendant pleaded a general denial, and a counterclaim for damages from delay and defects in the building. The court charged to find for plaintiff if he performed the contract within a reasonable time, that if after the building was completed defendant began the use of it and discovered defects which could have been remedied, but neither caused them to be remedied nor permitted plaintiff to remedy them, he could not recover damages which could have been avoided by the correction of the defects, that if defendant would not permit plaintiff to make the building conform to the contract until a specified date, and if plaintiff did then repair the building and make it conform substantially to the contract to find for plaintiff, and that if plaintiff failed to comply with the contract, and if defendant was thereby damaged, to find for defendant on its counterclaim. The jury found for plaintiff for the amount claimed, and for defendant on its counterclaim for an amount in excess of the contract price. Held, that the verdict was contradictory, not responsive to the pleadings, contrary to the instructions, and failed to resolve the issues of fact presented to the jury, since plaintiff could not recover unless he had substantially performed the contract, while if he substantially performed defendant was entitled to no damages on the counterclaim.

2. APPEAL AND ERROR (§§ 1031, 1032) — HARMLESS ERROR — PRESUMPTION AND BURDEN OF PROOF.

Errors of the trial court are presumed prejudicial, and it devolves upon the parties asserting their harmlessness to show such fact affirmatively, or otherwise the presumption will prevail.

Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.

Action by the Ferd Bauer Engineering & Contracting Company against the Arctic Ice & Storage Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Wilfred Hearn, of St. Louis, for appellant. Fry & Rodgers, of Mexico, Mo., for respondent.

REYNOLDS, P. J.

Plaintiff, appellant here, brought its action against defendant to recover $678.71, claimed to be the balance due for the erection of a cooling tower for which, upon the erection and completion of the same according to the contract and specifications, defendant was to pay plaintiff $1,300. Averring that the tower had been erected and completed according to the contract evidenced by a proposal and specifications set out in the petition, and that defendant had paid $621.29 on account of the contract price, plaintiff demanded judgment for the balance, together with interest and costs.

After a general denial of all the allegations in the petition, the answer of defendant sets up a counterclaim averring that according to the contract, the tower was to be erected and the work on it completed so that it would operate by April 5th, 1911, and that it had not been completed until some time in November, 1911, and alleging various defects in it, defendant claims that it has suffered damage by reason of plaintiff's failure to comply with the terms of the contract, in the sum of $2,040, for which it demands judgment.

Replying to this by a general denial of the averments of this part of the answer, the reply avers that after the erection of the cooling tower in controversy, plaintiff was notified by defendant that the tower was defective and did not operate in accordance with the terms of the contract, and that thereupon plaintiff offered to remedy whatever defects there were in the tower but that defendant had refused to allow plaintiff to make these corrections until about the month of November, 1911.

There was a trial before the court and a jury and a verdict in favor of plaintiff on the cause of action set out in its petition in the sum of $678.71, and a verdict in favor of defendant on its counterclaim in the sum of $1,478.71. Judgment, by nunc pro tunc entry, correcting the original judgment, was entered in favor of defendant for $800, the difference between the amount awarded plaintiff on its cause of action and that awarded defendant on its counterclaim. Interposing a motion for a new trial and excepting to the action of the court in overruling that motion, plaintiff has duly perfected its appeal to this court.

The only errors assigned by counsel for appellant are on the fourth instruction given to the jury by the court of its own motion, to the action of the court in receiving the verdict of the jury and entering it of record, and in overruling defendant's motion for a new trial.

That fourth instruction is as follows:

"If the jury find in favor of plaintiff on the cause of action set out in count one of plaintiff's petition, and also find in favor of defendant on its counterclaim, the verdict may be written in the following form:

"`We, the jury, find in favor of plaintiff on the cause of action set out in count one of plaintiff's petition and we assess the amount of plaintiff's recovery on the counterclaim at the sum of [insert the amount].

"`We further find in favor of defendant on defendant's counterclaim and we assess the amount of defendant's recovery on the counterclaim at the sum of [insert the amount].'"

It is argued that this instruction is misleading; that it misled the jury into returning an inconsistent verdict and is contradictory. While the only error assigned is to the giving of this fourth instruction and to the action of the court in receiving the verdict in the form given, we have examined the other instructions given at the instance of plaintiff and defendant. In effect, the jury were instructed that if plaintiff had performed the work under the contract within a reasonable time after entering into the contract, their verdict should be for plaintiff for the contract price, less any sum they found had been paid by defendant. The court further instructed the jury that if th...