Kitchen v. Clark

• Citation: 1 Mo.App. 430
• Parties: SOLOMON G. KITCHEN, Respondent, v. CHARLES B. CLARK, Appellant.
• Decision Date: 09 March 1876
• Court: Court of Appeal of Missouri (US)

1 Mo.App. 430

SOLOMON G. KITCHEN, Respondent,

v.CHARLES B. CLARK, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 9, 1876.

1. K. employed C. to make certain plans and specifications, but refused to receive or pay for them when finished, whereupon C. sued and obtained judgment for a sum smaller than that which he testified, at the trial, they were worth; K. then demanded the plans and specifications, which C. refused to deliver, whereupon K. satisfied C.'s judgment, and instituted this suit, in which he recovered judgment for the value as formerly sworn to by C. Held, that K. was restricted, in damages for the conversion, to the value as adjudicated in the former suit; upon respondent's remitting the excess, final judgment is rendered in his favor for the amount of the adjudicated value, with interest from the commencement of this suit.

2. A tender, to be effectual, must be unconditional.

APPEAL from St. Louis Circuit Court.

Reversed and judgment.

Lee & Adams, for appellant, cited: Clark v. Kitchen, 52 Mo. 316; Burt v. Dewey, 40 N. Y. 283; Curtis v. Groat, 6 Johns. 168; Osterhout v. Roberts, 8 Cow. 43; Sanderson v. Coldwell, 2 Aik. (Vt.) 203; Jones v. McNeil, 2 Bailey (S. C.), 466; Sharp v. Gray, 5 B. Mon. (Ky.) 4; Greenl. on Ev. (2d ed.) 225; Stark v. Kenan, Exr., 11 Ala. 818; Pars. on Con. (2d. ed.) 644; Breed v. Hurd, 6 Pick. (Mass.) 356; Hike v. Clark, 55 Mo. 105; Campbell et al. v. Johnson, 44 Mo. 247; Speck v. Riggins, 40 Mo. 405; Shephard v. Hampton, 3 Wheat. 200; Logan v. Small, 43 Mo. 254.

Pope & McGinnis, for respondent, cited: 1 Wag. Stat. 347, sec. 34; Routhel v. Dezetter, 43 Mo. 145; Clark v. Moody, 17 Mass. 248; Bank of Missouri v. Benoist, 10 Mo. 521; Carter v. Feland, 17 Mo. 383.

GANTT, P. J., delivered the opinion of the court.

The petition on which this cause was tried was filed at the June term, 1873. It stated that, in 1871, defendant, for value, promised to make and deliver to plaintiff a certain plan with detail drawings and specifications; that defendant made the plan and plaintiff paid its value, viz., $338.50, but defendant refused to deliver it; that it was worth $555, and for that sum plaintiff asked judgment. Also, that for the further sum of $156.50 defendant promised and agreed to make a certain other plan for plaintiff; that he made it and was paid for it, but has refused to deliver it; that it was worth $260, and for that sum plaintiff prayed judgment. Also, that defendant agreed and promised to make for plaintiff, for the further sum of $180, a certain other plan, etc.; that defendant made it, and was paid for it by plaintiff, but has refused to deliver it, wherefore plaintiff asks judgment for its value, which is alleged to be $295 and interest. Also, that defendant agreed to make for plaintiff a certain other plan and specifications, and superintend the building of a dwelling-house for plaintiff in or near the city of St. Louis, the cost of which was not to exceed $10,000; that plaintiff has done everything required of him, but defendant has neglected everything to be done by him, occasioning great loss, inconvenience, and discomfort to plaintiff, who claims damages for the breach of this contract in the sum of $5,000.

The answer of defendant denied that he made or violated any such contracts as are set forth in the petition. The answer is almost a reproduction of the petition in negative terms.

At the trial the fourth cause of action was abandoned, and the matter therein stated was formally struck from the petition. A jury were sworn, who returned a verdict for the plaintiff for $538.50 on the first count, for $356.50 for the second count, and $380 for the third count. Judgment was given accordingly.

By the bill of exceptions it appeared that, at the trial of the cause, Kitchen offered in evidence the record of a former suit, when Clark (now defendant) was plaintiff and Kitchen (now plaintiff) was defendant. This suit was begun in December, 1871. It was for the sum of $1,106.18, alleged to be the value of certain plans and specifications made by Clark for Kitchen and not paid for. Kitchen denied all the allegations of that petition, and there was a trial, and judgment for plaintiff for the sum of $675. Plaintiff (Clark) testified in that cause that he made the plans sued for; that he charged Kitchen, and told him that he charged him, 5 per cent. for making plans, drawings, detail plans, and superintending the work; for the first plan, the work to cost $18,500, the charge was 8 per cent; for the second plan, it was 2 per cent. on $12,256; and for the third plan, 2 per cent. on the lowest estimate, $14,000. Kitchen told him to send the bills to his office. Clark did this, and Kitchen refused to pay.

Mitchell, a witness for Clark, testified that the usual charge for general design and specifications was 1 1-2 per cent., and 1 per cent. for detail drawings. The bills shown to witness were approved by him. He said that in buildings of first class the prices were 3 per cent. on buildings to cost from $15,000 to $30,000, and the charge of 3 per cent. on $18,500 was fair.

(By this it would seem that the bill of exceptions is wrong in making Clark say that he charged 8 per cent. on $18,500. It does say this, however, very plainly.)

This was the evidence of plaintiff. Defendant, Kitchen, testified at length respecting the contract, but what he said is immaterial here. The record was read in evidence.

Mr. Davis testified for Kitchen, in this case, that at the former trial Clark had testified that he made the plans then sued on for Kitchen, under the contract therein referred to; that the prices therefor charged were reasonable, and they were worth $1,106.18.

Kitchen then proved that before this suit was brought he demanded these plans from defendant, who refused to deliver them. This was after the determination of the former suit, but before payment had been made of the judgment there had. There was a doubt whether Kitchen's attorney offered to pay the judgment if the plans were delivered; but it was admitted at the trial that it had been fully paid before this suit was brought.

The following instructions were given for Kitchen:

1. “The court instructs the jury that an offer to pay need not be accompanied by the actual production of the money; but if the money is declined before it is produced, the tender is complete on the refusal to receive it.”

2. “The court instructs the jury that the effect of the verdict and judgment in the case of Clark v. Kitchen, and payment thereof by plaintiff before the filing of the petition in this case, was to vest in plaintiff the title to the plans, specifications, and detail drawings described in the first-mentioned suit, and entitled plaintiff to the possession of them; and if the said plans, specifications, and detail drawings are the same that are described in the petition in this cause, and plaintiff demanded them from defendant and offered to pay, and has paid, the judgment in the case of Clark v. Kitchen, and that all this was done before the commencement of this suit, they must find for plaintiff.”

We have somewhat shortened the language of the second instruction, but have preserved its sense and meaning.

The case is, shortly, this: Clark sued Kitchen to recover damages for Kitchen's refusal to pay for making certain plans, and recovered judgment for $675. Then Kitchen sued Clark for the plans themselves, which Clark refused to give up, and recovered judgment for $1,275. In the first case, $675 was declared to be what Clark was entitled to receive for making the plans. In the second case, $1,275 was what he was declared to be liable to pay for detaining them. One of the reasons for the motion for a new trial was that the damages were excessive.

1. No circumstances of aggravation were shown entitling the plaintiff, Kitchen, to damages, except such as naturally and legally resulted from the refusal of defendant, Clark, to deliver to him certain enumerated plans. There is no doubt that the recovery in the action brought by Clark against Kitchen, and the satisfaction of the judgment, vested in Kitchen the title to the things for making which he was sued. It was alleged that the price of making them was $1,106.18. It appeared in evidence that, at the trial, Clark had testified that they were worth that sum. The...