Labeaume v. Hill

• Decision Date: 30 April 1821
• Citation: 1 Mo. 42
• Parties: LABEAUME v. HILL AND KEESE.
• Court: Missouri Supreme Court

1 Mo. 42

LABEAUME

v.HILL AND KEESE.

Supreme Court of Missouri.

April Term, 1821.

ERROR FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

JONES, J.

This was an action on the case, brought by Hill and Keese, against the plaintiff in error. The declaration contains four counts, one on a written agreement entered into between the parties, bearing date the 21st September, 1818, by which the defendants agreed to build and erect for the plaintiff in error, a stone wall or cellar of certain dimensions, therein mentioned, under the house which they were erecting for the plaintiff in error, and deliver the same on or before the third day of October then following. And the said then defendant, now plaintiff in error, agreed to pay them for the said wall, at the rate of five dollars per perch, which payment was to be made in lands at the rate of two dollars and fifty cents, or three dollars per arpent, to be chosen out of lands belonging to Labeaume, in the county of St. Charles, and by him conveyed to the said Hill and Keese. The declaration then avers, that the said Hill and Keese made the said wall, and delivered the same to the said Labaume and Bouis, before the said third day of October, and that the said wall contained fifty-nine perches and sixteen cubic feet, which, at five dollars per perch, amounted to $298 63 1/2, and assigns for breach, the non-payment of the money, although the said Hill and Keese were ready and willing, and offered to take lands in payment, according to the terms of the agreement, nor did the said Labeaume and Bouis convey the same. There is a second count, for work and labor performed, and for material found and provided, and used and applied in and about said work and labor. Another one for goods, &c., sold and delivered, and for money lent and advanced; and another on an account stated.

The defendant below (Bouis, the other defendant not having been served with process), pleaded first, non-assumpsit; and secondly that he offered to pay and convey to the said plaintiffs (below) lands in St. Charles county for said building of said wall, but which they neglected and refused to choose and select. The plaintiffs joined issue as to the first plea, and demurred to the last one, and showed several causes of demurrer.

There is neither joinder nor judgment on the demurrer, but the parties proceeded to trial of the issue joined in December term, 1819, when a verdict and judgment was given for the plaintiffs, Hill and Keese, for $1,761 27. The defendant below thereupon moved for a new trial, and filed the following reasons.

1st. The Court mis-directed the jury, that they had nothing to do with the evidence of the defendants' performance, according to the terms of the covenant and written agreement, which were read on the trial, and on which the the action of covenant and the first count of the suit was founded.

2d. That the verdict was contrary to evidence, in this, that there was sufficient evidence of a parol submission and award on the matters in dispute in the cause; and 3d. The written agreement being rejected, for variance, the plaintiffs ought not to have gone into their general counts in the case.

The Court having overruled the motion for a new trial, the defendant filed a bill of exceptions, which states that the plaintiffs on the trial of the cause produced in Court and offered in evidence, in support of their first count in their declaration, the following instrument, executed by the parties, to wit: We, the undersigned, Labeaume and Bouis of the first part, and Hill and Keese of the other part, agree as follows: that we, the said Hill and Keese, promise to make, or cause to be made, for the said Labeaume and Bouis, under the house that we are building for them, a stone wall or cellar wall, thirty-four feet in length, by twenty in width, for which the said Labeaume and Bouis do hereby agree to pay us at the rate and in the way hereinafter mentioned. We, the said Hill and Keese, further promise to begin the said wall as soon as possible, and deliver the same on or before third day of October, without longer delay; when and then we, the said Labeaume and Bouis, promise to pay unto the said Hill and Keese for the said wall, at the rate of five dollars per perch, deducting out of the said wall eleven perches and twenty-two cubic feet, which are already made. We, the said Hill and Keese, further agree to take in payment of the said Labeaume and Bouis, lands lying and being, and at the rate heretofore mentioned, in an agreement heretofore made and signed by the said parties, and ow in the hands of J. M. Guyol, Justice of the Peace, St. Louis, September 1st, 1818. The eleven perches and twenty-two feet, herein mentioned, we, the said Labeaume and Bouis, agree to settle for with the workmen that have made it. To which the defendant's counsel objected, alleging that it was variant from the writing declared on in said first count, in this, that the count was on independent promises; and, by the paper offered, the completion and delivery of the work by a day given, is made a precedent condition on the part of the plaintiffs; and in this, that no such terms of payment by the defendant was mentioned in said writing as stated in said count. The Court sustained the objection and rejected the paper.

The plaintiffs' counsel then offered parol evidence to prove the perform ance of the said work contracted for in said writing, and also of the work contracted for in a certain covenant on which an action was pending in this Court (Circuit) between the parties, and on which the plaintiffs' counsel entered a non-suit during this trial, insisting that they had a right to recover for the work done upon a quantum meruit; to which evidence the defendant's counsel objected, as to the said first mentioned writing, because the paper being rejected for variance, the plaintiffs could not go on their general counts for that work; and as to the said covenant, a copy whereof follows.--Here follows a copy of an agreement under seal, between the said Hill and Keese of the first part, and the said Labeaume and Bouis of the second part, bearing date the twenty-second day of June, 1818, by which the said Hill and Keese, in consideration of $1,336, to be paid in land at two dollars and fifty cents per arpent, or three dollars per arpent, to be chosen out of different tracts belonging to Labeaume in...