Fury v. Merriman

• Decision Date: 31 March 1870
• Parties: JOHN F. FURY, Appellant, v. JAS. MERRIMAN, Respondent.
• Court: Missouri Supreme Court

45 Mo. 500

JOHN F. FURY, Appellant,

v.JAS. MERRIMAN, Respondent.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

Green & Reese, and Allen & Reese, for appellant.

Jewett and Van Wagoner, for respondent.

BLISS, Judge, delivered the opinion of the court.

The plaintiff brought his action for work, etc., in painting defendant's dwelling-house, out-houses, and fences, and for graining a portion of the inside, and declared in the form of an indebitatus assumpsit, exhibiting with his petition a copy of his account, which covered all the work and materials, and which was all charged to the defendant. The answer denied everything, and upon the trial it was developed that the plaintiff had taken a contract from one Gerhart, the general contractor, to do the painting for $1,350, according to written specifications, and that Gerhart had paid him this amount, which is the sum credited to defendant in his account. The trial progressed without any objection to the form of the petition, and the plaintiff obtained a verdict for $985.50, upon which the court rendered judgment, which was reversed at general term.

Notwithstanding the form of the petition, the case was submitted to the jury as though the charges had been for extra work; and they were told by the court that the plaintiff was entitled to nothing for what was embraced in the specifications of the work to be performed under his contract with Gerhart, but could recover of the defendant the value of the extra work and materials which were ordered by him, provided they were embraced in the copy of his account. The whole matter was placed fairly before the jury, so far as instructions could do it, and they might have rendered an intelligent and unimpeachable verdict had the petition set out the true cause of action; but it was framed to cover all the work and materials done and furnished, mixing up and combining in the same items, so that they could not be severed, what was within the contract with Gerhart with what was claimed to have been ordered by the defendant outside of the contract. The jury were instructed to charge nothing to the defendant for the work and materials so covered by the contract; also, to charge nothing unless it was embraced in the account exhibited in the petition, so it became necessary for them to separate the two classes of items; but it is very clear, from comparing the verdict with the account and with the testimony, that the jury did not attempt any...