Greenwood v. Burns

• Decision Date: 31 March 1872
• Parties: JACOB GREENWOOD AND MATHIAS M. FLESH, Appellants, v. PATRICK BURNS, Respondent.
• Court: Missouri Supreme Court

50 Mo. 52

JACOB GREENWOOD AND MATHIAS M. FLESH, Appellants,

v.PATRICK BURNS, Respondent.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

Daniel Dillon, for appellants.

The court erred in giving said instruction; first, for the reason that there was no evidence to base it upon or to sustain it. The first part of the instruction reads: “If the plaintiffs authorized Mr. Oldham, the principal contractor, etc., to include the graining and gold numbering sued for in his account for extra work against defendant, and to settle for the same with defendant through the St. Louis Mutual House Building Company.” * * * There was no evidence tending to prove that plaintiffs ever authorized Mr. Oldham to include the work, or any work, in his account for extra work against defendant, or that plaintiffs ever knew that Mr. Oldham had an account for extra work against defendant, or that plaintiffs ever knew that Mr. Oldham had an account for extra work, or for anything, against defendant. Plaintiff Greenwood testified (first part of p. 5 of bill of exceptions) that about the time the work was done defendant called on him and requested plaintiff to have their account for this work included in Oldham's account for extra work against the company, and try in this way to obtain their money from the company.

Harding & Crane, for respondent.

WAGNER, Judge, delivered the opinion of the court.

This cause was originally brought before a justice of the peace, and on appeal to the Circuit Court it was tried without the intervention of a jury. The only question is whether the evidence justified the declaration of law given by the court of its own motion.

The case shows that the St. Louis Building Company was constructing a house for the defendant, and that one Oldham was the contractor under the company to erect and complete it. Oldham employed the plaintiffs to do the painting, and the defendant desiring some work to be done on the house additional to that contracted for by the company to be done, arranged with Oldham to do the extra work, and with the plaintiffs to do the graining and numbering. It is for this last work of graining and numbering that this action is brought. The principal witnesses in the case were the plaintiff Greenwood and the defendant, and there was some conflict in their evidence. Greenwood says he called on Burns, the defendant, and got the job to grain the house for $50, for which Burns agreed to give his two promissory notes at sixty and ninety days after the work should be done. Burns, on the contrary, says that he agreed to pay and give his notes for the graining, only in the event the building company did not make an appropriation for that purpose. When the work was finished the plaintiffs' bill was included in Oldham's account against the defendant for extra work; and here again there is a difference in the testimony, the plaintiffs saying that the bill was so included at defendant's request, and the defendant denying that he ever requested it. When the bill was presented to defendant by Oldham, he settled the whole account with Oldham by giving him in payment an order on the building company for the amount thereof, which order was accepted by the company and credited to Oldham. It...