Kirchner v. Collins

• Decision Date: 28 November 1899
• Citation: Kirchner v. Collins, 152 Mo. 394, 53 S.W. 1081 (Mo. 1899)
• Parties: KIRCHNER v. COLLINS.
• Court: Missouri Supreme Court

53 S.W. 1081

152 Mo. 394

KIRCHNER v.COLLINS.

Supreme Court of Missouri, Division No. 2.

November 28, 1899.

WORK AND LABOR — INSTRUCTIONS.

1. Where there was a sharp issue of fact, as to whether certain plans and specifications were drawn by plaintiff for the defendant or for a third party, an instruction that if they were drawn for a third party, and not for the defendant, then the verdict should be for the defendant, was proper.

2. Where there was a sharp issue of fact, it was not reversible error to charge that the burden was upon the plaintiff to maintain the issue on his part by a "fair" preponderance of evidence as to whether he was employed to perform the services sued for.

3. The jury is entitled to weigh a witness' evidence by his manner on the stand.

Appeal from St. Louis circuit court; James E. Withrow, Judge.

Action by Henry W. Kirchner against Monroe R. Collins.From a judgment for defendant, plaintiff appeals.Affirmed.

This is an action by plaintiff for alleged services rendered by him to defendant, as an architect, in drawing certain plans and specifications for an apartment building in the city of St. Louis, at the corner of Lindell boulevard and Vandeventer avenue.The defendant denied the employment, and asserted that whatever plans and specifications were gotten up by plaintiff were made at the request of, and for the use of, one Joseph E. Truitt, who had conceived the idea of constructing such a building on a parcel of ground belonging to defendant and his brotherRobert Collins; said Truitt intending to lease the said ground for that purpose, and to issue and sell bonds to raise the money for that purpose.The issues of fact before the jury were whether the services rendered, whose value was sued for, were rendered to defendant, Collins, or to said Truitt, and whose testimony should be credited by the jury, — Truitt's or defendant's.The verdict was for defendant, and plaintiff appeals.

A. C. & H. B. Davis and Chester H. Krum, for appellant.McKeighan, Barclay & Watts, for respondent.

GANTT, C. J.(after stating the facts).

1.The first error assigned is the action of the circuit court in giving the first instruction prayed by defendant: "(1)The court instructs the jury that if they believe from the evidence that the plans and specifications drawn up by plaintiff, and put in evidence in this action, were drawn up for one Joseph E. Truitt, and not for defendant in this suit, they will find a verdict for the defendant."The objection is that it ignored the possibility of the adoption of the plans by defendant, Collins, although they had originally been prepared for Truitt.It is sufficient to say on this point that no basis for...