Fitzgerald v. Hayward

Decision Date31 August 1872
Citation50 Mo. 516
PartiesALMORE R. FITZGERALD, Respondent, v. JOHN T. K. HAYWARD et al., Appellants.
CourtMissouri Supreme Court

Appeal from Macon Court of Common Pleas.

Carr, for appellants.

I. The court erred in not appointing a referee and referring this case to him. Where the parties do not agree to have the case referred, the court, upon the application of either, or of its own motion, may direct a reference, where the trial of an issue of fact shall require the examination of a long account on either side (Gen. Stat. 1865, ch. 169, p. 674, § 18; Wagn. Stat. 1041, § 18), and “the examination of a long account” was involved in the trial of this case.

II. The court below erred in permitting the witnesses to give their opinions on matters of cost. The very facts upon which the hypothesis was based were disputed; and when such is the case, it is not proper to ask the opinion of a witness upon a state of facts not admitted. The evidence was of mere speculative opinions, instead of facts within the knowledge of the witnesses. (Kay v. Thompson, 10 Am. Law Reg., N. S., Sept, 1871, p. 594.)

III. The court erred in giving the second instruction at the request of the respondent. The fact whether the respondent had broken the contract and abandoned the work is entirely ignored by this instruction. If the respondent had broken the contract before the appellants took possession, then they had a right to take possession, without let or hindrance. This instruction, then, is erroneous. It does not embrace the issues as raised by the pleadings and evidence. (Clark v. Hammerle, 27 Mo. 70; Sawyer v. Hann. & St. Jo. R. R. Co., 37 Mo.) The fourth instruction is erroneous for the same reason as the second. The sixth instruction is erroneous for the reason that it ignores the issues raised by the pleadings and evidence, viz.: first, whether respondent would have been able, notwithstanding a temporary suspension of the work by the mutiny of his men, or from any other cause, to have completed his contract by the first day of June, 1870; second, whether the respondent was prosecuting the work with sufficient force to insure its completion by the first day of June, 1870; third, whether respondent was prosecuting said work under said contract to completion with such speed as was required by the appellants; fourth, whether the respondent's partner, Smith, abandoned said work without the consent of the appellants; fifth, whether the respondent's agents voluntarily abandoned said work before appellants took possession thereof. (The City of St. Louis v. McDonald, 10 Mo. 609; Shannon v. Comstock, 21 Wend. 457.)

IV. The court erred in refusing to give instructions 2, 3, 4 and 8, asked by appellants, for the reasons stated under the foregoing proposition.

The covenants in this contract are independent, and if the respondent violated any one of them, he thereby invoked a forfeiture of his rights under said contract, and in that case it is expressly provided that the appellants “might enter upon and take possession of the premises without let or hindrance.” Treating the covenants in this contract as independent, and the breach of any one of them as forfeiting the rights of the respondent under said contract, the second, third and fourth instructions are based upon such a hypothetical state of facts as to come strictly within the terms of the respective covenants, and should have been given as asked. This independence of the covenants is entirely ignored by the court below in the instructions given. Moreover, they utterly fail to construe said contract according to the letter and spirit of it, as expressly stipulated in it.

Williams & Eberman, for respondent.

I. The court did not err in overruling the motion of the defendants to appoint a referee in said cause. The statute in regard to appointment of referee (Wagn. Stat. 1041, § 18), authorizing the court to refer causes, applies only to cases where accounts, in the common acceptation of that term, may exist and require examination. The case at bar is not of that character. (Thomas v. Reab, 6 Wend. 503; Silmser v. Redfield, 19 Wend. 21; Martin v. Hall, 26 Mo. 389; Daly v. Timon, 47 Mo. 516.) Although it is a case involving long accounts, it is among the class of cases in which issues of fact are triable by a jury. (Daly v. Timon, supra.)

II. Fitzgerald, Carlin and Magnus testified as experts, or men acquainted with the matters and things about which they testified, and their opinion in regard to the subject-matter was competent evidence to go to the jury. (Lamoure v. Caryl, 4 Denio, 374; Stonam v. Waldo, 17 Mo. 489; Vandine v. Burpee, 13 Metc. 288; Hoxie v. Allen, 38 N. Y. 175; The State v. Klinger, 46 Mo. 224.)

III. The second instruction was good. It declared that “if the jury found from the evidence that defendants, in March, 1870, took possession of the work on sections 22 and 23, and thereby prevented plaintiff from completing said work, he was entitled to recover as damages the difference between the cost of the work remaining to be done at the time defendants took possession, and the price that defendants agreed by the contract read in evidence to pay plaintiff for such work.” (Masterton v. The Mayor, etc., 7 Hill, 61, and cases cited; City of St. Louis v. McDonald, 10 Mo. 609; Little v. Mercer, 9 Mo. 218.)

IV. The instructions offered for appellant and refused were not good. Instructions should be predicated on the whole testimony, and when they have a tendency to restrict the consideration of the jury to isolated facts, to the exclusion of other facts which are before them in evidence, it is not only a misdirection, but an infringement on the province of the triers of the facts. (Chappell v. Allen, 38 Mo. 213; Himes v. McKinney, 3 Mo. 382.) The instructions took from the jury the determination of material facts.

ADAMS, Judge, delivered the opinion of the court.

This action was founded on a special contract entered into between the plaintiff and one Smith, with the defendants, by the terms of which the plaintiff and Smith undertook to do grading on section 22 and the grading and masonry on section 23 of the Hannibal & Central Missouri Railroad, to be commenced immediately (November 10, 1869) and prosecuted with sufficient force to insure completion by the first day of June, 1870; the work to be done in such manner as should be directed by the engineer in charge of the work, or other agent of the defendants; to be prosecuted to completion with such speed as should be required by the defendants; the work to be of first class of its kind, to be done to the satisfaction of the engineer. The work, as it progressed, was to be paid for monthly according to certain rates specified in the contract. The payments were to be made on estimates to be made monthly by the engineer, and ten per cent. of the same was to be reserved as security for the completion of the contract; and in case of failure to complete the contract, this reservation to remain as liquidated damages in the hands of the defendants for such non-fulfillment. In making payments, the defendants reserved the right to pay off the hands and workmen of plaintiff and Smith, and deduct same from amount due them. A persistent refusal to comply with the provisions of the agreement was to work a forfeiture of the rights of plaintiff and Smith, and entitle defendants to enter upon and take possession of the premises without let or hindrance, and to re-let the same. The plaintiff bought out Smith's interest in the contract, and took an assignment thereof to himself, and has brought this suit in his own name for an alleged balance due him under the contract for work done and completed, and also for damages as net profits for the remainder of the work, alleging that he was wrongfully prevented from doing the same by the defendants, who took possession themselves and prevented him from proceeding with the work.

The defendants, by answer, set up the defense that they had fully paid the plaintiff in money, and by paying his hands large amounts for all the work that was done, and that the ten per cent. reserved had been forfeited to them, and deny that they wrongfully prevented the plaintiff from completing the work. They charge that the plaintiff abandoned the work, and did not, although urged by them to do so, proceed with the work with sufficient force to complete it by the first of June, 1870; and that, in compliance with the agreement, they took possession with a gang of hands of their own, so as to complete the same in time, etc.

When the case was called for trial the defendants insisted that it should be referred to a referee. The plaintiff wanted a jury trial, and the court refused to refer the case as asked by defendants, and to this ruling the defendants excepted.

Upon the trial before the jury, each party gave evidence tending to prove the issues as raised by each, and some objections were made as to the manner in which the witnesses were allowed to testify, giving their opinions as to estimates of damages on the facts as detailed by them. But it is unnecessary to notice these objections, as we do not think them material. The question of experts does not apply to the facts of this case. A witness can only be allowed to detail facts, and not mere opinions not based upon facts. But in estimating the cost of work, etc., he must give the facts, and may be allowed to state what his estimate is upon the facts detailed.

The jury found a verdict for the plaintiff for $4,375.43.

The only points necessary to consider in this case grow out of the instructions given and refused. At the instance of the plaintiff, and against defendants' objections, ...

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