Knost v. Van Hoose
| Decision Date | 13 June 1914 |
| Parties | JOHN KNOST, Respondent, v. B. L. VAN HOOSE et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court, Division No. Two.--Hon David E. Blair, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
McReynolds & Halliburton for appellants.
(1) The court erred in refusing the testimony of Mr. Milton shown on pages 196 and 197 of the record to the effect that the mill as he found it when called in by Van Hoose had not been completed in good and workmanlike manner and that the work on said mill had not been done in a good and workmanlike manner and that the mill as he found it would not clean ore. 3 Wigmore on Evidence, sec. 1923; Ferguson v. Hubbell, 97 N.Y. 513; Taylor v. Monroe, 43 Conn. 44; Skinner v. Kerwin Glass Co., 103 Mo.App. 650; Boettger v. Architectural Iron Co., 124 Mo. 84; Monahan v. Coal Co., 58 Mo.App. 676. (2) The court erred in giving plaintiff's first instruction because said instruction did not state the correct measure of damages. 24 L.R.A. (N. S.) 351 note; Keller v. Herr, 157 Ill. 57, 41 N.E. 750; Chicago Athletic Association v Eddy, 77 Ill.App. 204. (3) The measure of recovery is the sum stipulated in the agreement, less the damages sustained by failure strictly to perform. Kane v. Stone Co., 39 Ohio St. 1, affirming 4 Ohio Dec. Reprint, 509; Aetna Iron & Steel Works v. Kossuth County, 79 Iowa 40, 44 N.W. 215; Mitchell v. Dunmore Realty Co., 126 A.D. 829, 111 N.Y.S. 322; Ryan v. Voelkl, 26 Misc 840, 56 N.Y.S. 1065; Vogel v. Friedman, 34 Misc. 775, 68 N.Y.S. 820; Cook v. American Luxfer Prism Co., 93 Ill.App. 299. (4) The court erred in giving plaintiff's third instruction. The jury is instructed in event that the plaintiff substantially complied with the terms of his contract the defendants herein are not entitled to recover on their counterclaim. This is not the law. Plaintiff must make a just allowance for defects that exist, however trivial they may be. Boteler v. Roy, 40 Mo.App. 238; Monocacy B. Co. v. Iron Co., 83 Pa. 517, 524; Heckman v. Pickering, 81 N.Y. 213; Nolan v. Whitney, 88 N.Y. 648; Glacius v. Black, 50 N.Y. 153; Arndt v. Keller, 96 Wis. 274, 276; Manthey v. Stock, 133 Wis. 107, 110.
R. A. Mooneyham, W. R. Shuck and J. D. Harris for respondent.
(1) Appellants' first contention that the witness Milton, instead of detailing the facts, should have been permitted to give his bald opinion as to whether the mill was completed in a workmanlike manner, is clearly untenable. The witness was permitted to tell what conditions he found in the mill at the time, and what he did. This was the proper line of examination. Dammann v. St. Louis, 152 Mo. 186, l. c. 199, 200; Spaulding v. Edina, 122 Mo.App. l. c. 69; Kirby v. Wabash Ry. Co., 85 Mo.App. l. c. 351. (2) Plaintiff's first instruction was properly given, as it correctly declared the law applicable to the case. Plaintiff did not sue on quantum meruit but on an express contract for a definite unpaid balance of a fixed contract price. Budd v. Hoffheimer, 52 Mo. l. c. 304; Cole v. Armour, 154 Mo. 333; Marshall v. Ferguson, 101 Mo.App. 653; Witty v. Saling, 171 Mo.App. 574; Real Estate Co. v. Investment Co., 150 Mo.App. 626; Veatch v. Norman, 409 Mo.App. l. c. 394. (3) The third instruction for the plaintiff was properly given by the court. There must be a fair and substantial compliance with the conditions of the contract, and this is all that is required. Lumber Co. v. Snyder, 65 Mo.App. l. c. 577, 578; Crapson v. Wallace Bro., 81 Mo.App. l. c. 684; Secret Service Co. v. Gill-Alexander Mfg. Co., 125 Mo. l. c. 156; Goldsmith v. Wamsganz, 86 Mo.App. l. c. 8; McQuillin's Instructions to Juries in Missouri, In Civil Cases, p. 507, sec. 791; Hovey v. Pitcher, 13 Mo. l. c. 202. (4) One cannot complain of self-invited error. He is bound by the line of conduct he adopts at the trial. He cannot complain of his adversary's instructions, although erroneous, where his own instructions show the same default. Finnell v. Million, 99 Mo.App. 552, l. c. 559; Christian v. Insurance Co., 143 Mo. 460, l. c. 468; Walker v. Robertson, 107 Mo.App. 571; Aston v. St. Louis Transit Co., 105 Mo.App. 226, l. c. 232; Jennings v. Railroad, 96 Mo. 394; Black v. Railroad, 172 Mo. 177.
Robertson, P. J., not sitting.
This is an action to recover the balance of the contract price for removing and rebuilding a concentrating lead and zinc mill.
In the early part of 1912, defendants, Van Hoose and others, held a mining lease on what is known as the "Aylor land" in Jasper county. In order to mine it properly, it was necessary to erect a mill, and they purchased what was known as the Wolf's Heart mill located at another place in the county, and on April 22, 1912, entered into a written contract with plaintiff Knost to tear it down, move it, and rebuild it on the leasehold. The written contract provided that Knost was "to do all work in workmanlike manner" and "give satisfaction in every respect" and that he would "test this mill out when completed and guarantee this mill to clean." For this work Knost was to receive $ 2875. He commenced his task immediately and was engaged in the work until the following September. During this time defendants paid him all of the contract price except $ 505.90, and it is to recover that amount that plaintiff sues. Plaintiff alleged full compliance with the terms of the contract on his part.
Defendants' answer contained a general denial, together with a counterclaim in which they sought to recover $ 1000 which they claimed to have expended in bringing this mill up to the standard of efficiency required by the contract, alleging that plaintiff failed to do his work in a workmanlike manner or to give satisfaction, and that when plaintiff tested the mill it was not ready to start and failed to clean ore, and that by reason of the faulty construction, they were compelled to employ another contractor to remodel the mill at the cost aforesaid.
The reply put the new matter in issue.
The jury found the issues raised by the petition and answer in favor of the plaintiff, giving him a verdict for the amount asked with interest, and found against defendants on the counterclaim. The appeal is by the defendants.
It is not seriously contended by defendants that plaintiff did not make a case for the jury. There is a square conflict in the evidence.
The judgment in this case must be reversed and the cause remanded because of reversible error in the instructions, but to guard against error in another trial and a consequent appeal, it is thought expedient to rule on two of the grounds pressed by appellants before reaching the point on which the decision goes.
Appellants complain that the court erred in not permitting their witness, Milton, to answer four questions, all embodying the same idea. The first question was not answered because the witness did not understand it, and no objection was made. The second question, to the same effect, was objected to because it called for a conclusion, which objection was sustained but defendants saved no exception. The same is true as to the third question which was to the same effect. The fourth question, to the same effect, was as follows: "I will ask you to state this, whether the work which was done there, not whether the mill was completed in a proper manner, whether the work was done in a good workmanlike manner?" The same objection was made and sustained and exception saved. We think the action of the trial court was entirely correct. If that kind of question could be asked in a case of this kind, it would be useless to take up the time of judge and jury in hearing witness after witness detail the actual conditions existing (represented here by a printed record of nearly three hundreds pages), but it would suffice for the opposing litigants to retain experts to determine by opinion the very question that the jury supposed it was called upon to decide from the facts. The witness as an expert mill builder had detailed what he thought was wrong with the mill in question and described what he did to correct the defects. The question asked was calculated to bring an answer that the jury was sitting there to answer. There are questions which may by the answer of a witness invade the province of a jury and still be proper, but they must be about a matter that will aid in the determination of an issue by men of ordinary intelligence. For instance, in this case, the opinion of the expert was worth nothing to the jury that certain planks because of being rotten were unfit for use. The fact that they were decayed was proper for the jury to know, but whether putting rotten planks into construction was a compliance with the contract provision that the work must be done in a workmanlike manner was not a question of such a nature as to require an expert to aid the jury. So, on showing that a box intended to hold water had been constructed so as to leave one end out which let the water run away and into the engine room, required no expert to help the jury in determining whether the contract in that particular had been performed. It might, on the other hand, aid the jury materially in determining the question to have an expert's opinion on the way machinery, pulleys, etc., should be arranged in this kind of a mill so as to construct it in a workmanlike manner. With the facts before the jury showing how the plaintiff constructed this mill, the details pointed out by the witness Milton in which he said the construction was wrong, it was then for the jury to say whether the plaintiff had complied with his contract in that particular. The jury might decide that, granting...
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