Lamb v. Brolaski

• Decision Date: 31 March 1866
• Citation: 38 Mo. 51
• Parties: ZACHARIAS LAMB, Respondent, v. HENRY L. BROLASKI, Appellant.
• Court: Missouri Supreme Court

38 Mo. 51

ZACHARIAS LAMB, Respondent,

v.HENRY L. BROLASKI, Appellant.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Land Court.

C. C. Simmons, for appellant.

I. The defendant was entitled to have deducted from the plaintiff's demand an amount equal to the difference in value between the work which was done, and that which ought to have been done under the contract--Lee et al. v. Ashbrook, 14 Mo. 378; Britton v. Turner, 6 N. H. 481.

II. The defendant's set-off for the value of the lumber received by the plaintiff ought to have been allowed, no matter whether it was at the time of its delivery the individual property of the defendant, or the property of the firm of Brolaski & Becket. The proof clearly establishes the fact, that the lumber was delivered to the plaintiff, and received by him at the time, with a distinct understanding between all the parties that it was in payment for the very work and labor now sued for, and that the value of the same so received by the plaintiff largely exceeds the amount of his claim in this action. A joint indebtedness may be set off against an individual demand by special agreement, or when there was a mutual understanding that it was to be done--Barbour, Setoff, 102.

E. T. Farish, for respondent.

I. The referee finding the value of the work, and that respondent accepted it, properly decides that, as against this quantum meruit, damages for difference between the contract price and the value of the work cannot be allowed, because they do not, and necessarily cannot, exist together--Thompson et al. v. Allsman, 7 Mo. 530; Dutro v. Walter, 31 Mo. 516.

II. The referee properly disallowed the items for lumber in appellant's counter-claim, because the evidence clearly showed that it was a joint demand of Brolaski & Becket, and could not therefore be allowed as a set-off against the separate debt of plaintiff--Finney v. Turner, 10 Mo. 207; Vasseur v. Livingston, 3 Kern. 252; Lemon v. Trull, 13 How. Pr. 248.

HOLMES, Judge, delivered the opinion of the court.

The case comes up on exceptions to the report of the referee. The petition is founded upon an account filed as a mechanic's lien. The cause of action is upon a quantum meruit, and not upon the written contracts. There were several particular contracts in writing, in reference to different portions of the whole work. There were disputes as to whether the work had been done according to contract, and the defendant claimed that the contracts had not been performed and completed. The plaintiff abandoned the contracts, and sued on a quantum meruit for as much as the work was actually worth. The answer took no objection to this, and the trial proceeded accordingly. The referee took the contracts as governing the prices, and refused to allow the defendant to show, by way of damages, that the work had been badly done, and not according to contract, and that what he received was really worth much less than the contract prices. He decided that the claim of damages could not be taken into consideration. In Lee v. Ashbrook, 14 Mo. 378, it was held that, in such case, the party accepting the work ought still to pay the value of the work received, not exceeding the...