Kempf v. Zeppenfeld
| Decision Date | 16 May 1876 |
| Parties | CONRAD KEMPF, Respondent, v. WILLIAM ZEPPENFELD, Appellant. |
| Court | Missouri Court of Appeals |
1. Where the evidence is conflicting and is submitted to the jury with proper instructions, the verdict will not be disturbed by an appellate court-- appellate courts will not weigh evidence.
2. An instruction that, where defendant alleged a settlement, the burden is upon him of proving such settlement by a preponderance of testimony is not erroneous.
3. The testimony of experts as to the signature of K. to a paper is evidence from which the jury may determine whether the paper was executed by K.
4. A receipt in full, executed by plaintiff, is prima facie evidence of a settlement and payment in full.
5. Affidavits in support of a motion for a new trial on account of newly-discovered evidence will be disregarded if they show that nothing but gross negligence prevented the party from knowing, before the trial, the matters alleged to be newly discovered.
APPEAL from St. Louis Circuit Court.
Affirmed.
T. Z. Blakeman, for appellant, cited: Jaccard v. Davis, 43 Mo. 535; Wag. Stat. 1058.Jecko & Hospes, for respondent, cited: Scooeri v. Brashear, 46 Mo. 345; Barry v. Blumenthal, 32 Mo. 29; State v. McLaughlin, 27 Mo. 111; Philips v. Philips, 46 Mo. 607; Jaccard v. Davis, 43 Mo. 535; Miller v. Whitson, 40 Mo. 97; Goff v. Mullholland, 33 Mo. 203; Tilford v. Ramsey, 43 Mo. 421; Richardson v. Farmer, 36 Mo. 35.
Kempf sued Zeppenfeld to the October term, 1872, of the St. Louis Circuit Court, alleging that at the special instance of defendant he had furnished the materials and laid for him 86 7-22 perches of rubble-stone masonry at $3.50 per perch, making $302.20, and laid for him 188 7-22 feet superficial measure of range-rock masonry at 65 cents per foot, making $122.55, or a total of $424.75, for which plaintiff asked judgment.
Also, Kempf alleged that on October 1, 1870, he did certain other work, and furnished certain other materials--that is to say, he furnished materials and laid 47 17-22 perches of masonry at $4 per perch, making $191; he furnished macadamizing to the amount of $25, sand to the amount of $20, lime to the amount of $11.25, did eleven days' work at $4 per day, making $44, furnished a laborer for three days at $2.75, making $8.25, paid for eight days' work of mason laying plank under foundation at $4 per day, $32, furnished a laborer for two days at $2.75, making $5.50, and again for a day and a half, making $4.02; total $341.02. All these materials were furnished and the work done at defendant's special instance and request; the work, labor, and materials were reasonably worth what was charged, but defendant has failed to pay, etc.
The defendant denied that plaintiff did certain work and furnished certain materials to the value of $420.75, or that the items of said account, or any of them, are correct, or that “defendant ever owed” anything to plaintiff on account of “anything” in the first count stated.
As “to the second pretended cause of action,” defendant says it is not true that plaintiff did the work or furnished the materials in that count sued for, or any of them, or that said account or any item thereof is correct, or that defendant promised to pay the sum therein claimed, or that they were worth the sum of $341.02, or any other amount.”
Further answering, defendant says that on June 25, 1870, plaintiff, by his undertaking in writing, bound himself to do the stone-mason work at the colored school on Christy avenue, upon the same terms and conditions that were contained in a contract between defendant and the Board, etc., of St. Louis Public Schools, dated March 11, 1870, at the rate of $3.25 per perch; that thereupon plaintiff began the work, and that it is the same which is sued for in this suit; that about September 20, 1870, after all the work and labor had been done, plaintiff and defendant accounted respecting the same, and $150 was found to be due from defendant to plaintiff. This sum defendant paid to plaintiff in full satisfaction for “said demands.” Wherefore defendant prayed judgment.
Plaintiff, in reply, denied “that he signed or executed said undertaking in writing mentioned in said answer and filed therewith;” denied that he obligated himself to do the said work at the rate of $3.25 per perch, and denied the accounting alleged on September 10, 1870, or at any other time; denied the payment of $150, or the taking by plaintiff of any such sum in full or in satisfaction of the demands sued for in this case. This reply was verified by affidavit.
The trial of the cause was begun on December 17, 1874, was continued through the 18th, and ended with a verdict, on December 19, 1874, in favor of plaintiff Kempf, with damages, as to the first count, in the sum of $251.72, and with damages, as to the second count, in the sum of $213.94. Judgment was thereupon given for $465.66 in favor of plaintiff. A motion for a new trial was filed within four days, and on May 10, 1875, it appears to have been overruled. On May 31, 1875, a bill of exceptions was filed, and the case went by appeal to the general term, which affirmed the judgment, and Zeppenfeld appealed to this court. The delays were all accounted for in the bill of exceptions. By this paper it appeared that at the trial plaintiff testified that, between June 1st and September 20, 1870, he, at the request of defendant, furnished the materials and laid 86 7-22 perches of rubble masonry at the colored school on Christy avenue, in this city, for the price agreed on, between plaintiff and defendant, of $3.50. In like manner he furnished materials and laid 188 17-22 feet, superficial measure, of range-rock masonry at 65 cents per foot, agreed upon by the parties before the work was begun. Afterwards, in September and October, plaintiff did for defendant, on same building, at his request, the work, and furnished the materials mentioned in the second count. The prices charged were reasonable and just. This was extra work. The work under his contract amounted to $424.75. The total of the two sums was what he sued for. On this defendant paid him $150, and to James Crinnion, quarryman, at the request of plaintiff, $200 more. This is all he ever paid to plaintiff, or any one for plaintiff.
On cross-examination plaintiff stated that these payments were made by checks; that he never requested defendant to pay the balance of Crinnion's bill; whether the balance of Crinnion's bill is paid plaintiff does not know. Plaintiff and defendant never had a settlement; they never had a written contract for the work. Plaintiff made a proposal in writing, but defendant never accepted it. Defendant told plaintiff to go and do the work. Plaintiff denied his signature to the paper annexed to the answer, and said it was a forgery. (This was the receipt mentioned in that pleading.) He also denied that defendant paid him the money mentioned in it; never went to defendant's house with Crinnion. He also denied his signature to the receipt, to Heisel, of $200, for stone mason's work on house on Gravois road; he said that it, too, was a forgery. He pronounced another receipt, purporting to be signed by him, dated August 1, 1870, for $20, to be a forgery; another receipt, dated February 20, 1870, for $50, for work on a house on Manchester road, he pronounced a forgery; and the same he declared in respect of a receipt, dated April 16, 1870, for work done on Hesse's place, and in respect of another receipt, dated February 20, 1869, for cellar work on Hesse's house, on Clayton road. He proceeded to say that he had done for defendant similar work to that here sued for; that he did work for him on Hesse's house, on the Clayton road, and on White's house, on the Manchester road, and also similar work since that charged for in this suit; built the foundations of Logan Dameron's houses for him, corner of Fourteenth and Washington avenue; always got his money without trouble, except in this case; gave him receipts in full for the work done on Hesse's house, and White's; don't know what defendant did with these; gave him a receipt, also, for the White job.
Plaintiff then called Yousal, who confirmed his evidence touching the terms on which he contracted with defendant; also Jacob Kempf and Harry Stiffen, who testified to the same effect; and George Siener, who testified that he had presented to defendant the account on which this suit was brought; that in the most deliberate manner he promised, in October, 1870, to pay it as soon as he got his money from the public schools, and afterwards professed not to know Kempf at all, but, when confronted with him (he tried to avoid meeting him), he denied owing him anything. He also called Milton Wash, secretary of the public schools, who testified that the defendant was the contractor for building the colored school-house on Christy avenue. He produced a voucher for the extra work done by defendant, containing an itemized statement of the whole matter, and the prices paid for each item. Defendant first made an account for a much larger amount, which was cut down.
The plaintiff was allowed to read this account to the jury, against the exception of defendant, whose points were that it was incompetent to show either the quantity or value of the work done, and was calculated to prejudice the minds of the jury. This was the case of the plaintiff.
The defendant examined John Moran, who testified that he knew Crinnion, who was then dead, and he proved the genuineness of certain memoranda purporting to be made by him.
He also produced as a witness Henry Chensler, who testified that the signatures of plaintiff, declared by him to be forgeries, were genuine. He did not see plaintiff write them; only judges from his...
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