Ferris v. Edmonston

• Decision Date: 19 March 1907
• Citation: 124 Mo. App. 94,100 S.W. 1119
• Parties: FERRIS v. EDMONSTON.
• Court: Missouri Court of Appeals

100 S.W. 1119

124 Mo. App. 94

FERRIS v. EDMONSTON.

St. Louis Court of Appeals. Missouri.

March 19, 1907.

1. CONTRACTS—EXPRESS CONTRACTS—PLEADING.

A pleading, alleging that defendant agreed that if plaintiff would furnish the material and lay piping from a water main, past defendant's property, and put in a stop box in front of it, defendant would pay plaintiff his proportional part of the cost, set up an express contract.

2. SAME—EVIDENCE.

In an action on such contract, evidence to prove both what the work cost and its reasonable value was proper.

3. SAME—SUFFICIENCY OF EVIDENCE—SUBMISSION TO JURY.

Where, in an action on a contract, plaintiff swore that he and defendant agreed on a contract according to the terms alleged in the complaint, there was substantial evidence warranting a submission to the jury.

4. APPEAL—HARMLESS ERROR.

Where other instructions expressing the same proposition in a form pertinent to the facts of the case were given, the refusal of a requested instruction was harmless error.

5. SAME.

Where, in an action on a contract, plaintiff alleged that defendant agreed to pay his share of the expense of laying a pipe from a water main past defendant's property and putting in a stop box, and there was evidence that defendant had ordered the stop box, but none that an adjoining owner to whose property the pipe was extended had paid for it, the refusal of an instruction to find for defendant, if such adjoining owner had paid plaintiff for the whole pipe, and the giving of the instruction requiring a finding that such owner had paid not only for all the piping but for defendant's stop box, to entitle defendant to a verdict on the theory that plaintiff had been paid for all the work done by him, was not prejudicial to defendant.

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

Action by G. L. Ferris against J. O. Edmonston. Judgment for plaintiff, and defendant appeals. Affirmed.

Edmonston & Stallings, for appellant. Fry & Rodgers, for respondent.

GOODE, J.

This case was filed before a justice of the peace, whence it went by appeal to the circuit court, and thence to this court. Plaintiff sued to recover $27.90 as the defendant's part of the cost of laying a water pipe and putting in a stop box in front of his property. The water main from which the lateral pipe was laid ran along the south side of Central avenue, an east and west thoroughfare, in the city of Mexico, Mo. This avenue is intersected at right angles by Clark avenue, a north and south thoroughfare. Defendant lived on lot 31, which abuts on the east side of Clark avenue, north of Central. The corner lot immediately south of defendant's is lot 32, and, we understand, is vacant. North of defendant's lot is No. 30, which is the home of Mrs. Mary Norris. Plaintiff's lot is 150 feet wide, and the record suggests, but does not say, that the lots on either side are of the same width. Mrs. Norris wanted water brought from the south side of Central avenue to her house. In order to get it there, it was necessary to carry a pipe northward from the main on the south side of Central avenue, past lot 32 and lot 31, on which defendant resided, and thence into Mrs. Norris's house, through lot 30, on which she resided. Plaintiff was a plumber who did such work, and was asked by the agent of Mrs. Norris to lay pipes so as to take the water into her house. The agent suggested that plaintiff endeavor to get defendant to join in the enterprise so as to lessen the cost to Mrs. Norris. Plaintiff acted on the suggestion, but at first he and defendant could not agree on the price to be paid, as defendant objected to paying any part of the charge for laying the pipe in front of his lot, because it was only necessary to come to the southwest corner of it in order for defendant to tap the street pipe with a service pipe to convey water into his premises. He did not object to helping defray the cost of getting the water past the vacant corner lot; that is, No. 32. The result of the treaty between plaintiff and defendant was that the latter should pay his part of the cost of laying the pipe from the main on the south side of Central avenue to the southwest corner of his lot; Mrs. Norris to bear her part of the cost of that work, and all the expense of laying the pipe from said corner to a connection with her house. After...