Lee v. Ashbrook

• Decision Date: 31 March 1851
• Citation: 14 Mo. 378
• Parties: LEE & DOLEN v. ASHBROOK.
• Court: Missouri Supreme Court

14 Mo. 378

LEE & DOLEN

v.ASHBROOK.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

Respondents, Lee & Dolen, instituted suit against appellant in the St. Louis Court of Common Pleas, at the September term, 1849, by petition, which set forth, in substance, that they, with appellant, in January, 1849, entered into a contract whereby respondents were to do the excavation for a house to be built by appellant in the city of St. Louis, for which appellant was to pay them fourteen cents a cubic yard, to be paid as done; also, they were to build the walls of said house, intended for a pork-house, and also the walls of a smoke-house at the rate of $1 62 1/2 a perch, to be measured as usual, two-thirds of which was to be paid as done, and the balance when all completed, by appellant's note; that they entered upon the performance of this contract and did all the excavating, for which appellant has not paid; that they proceeded to build said walls, and continued so to do till they had built eight hundred perches, when appellant required them to cease their work, declaring that they were not doing it according to the contract, whereupon they demanded to see the contract, which defendant refused, but required them to stop their work, declaring that, if they proceeded further, he would have it pulled down. Whereupon they did stop, contending, however, that they did do their work according to the contract, and were willing and offered to go on and complete it.

They then demanded of appellant pay for what they had done, which was refused, and they aver that defendant did not pay for the walls as they were built, as provided for in the contract; that defendant now keeps and enjoys said excavation and walls, done and built by respondents; that because they kept their part of the contract, and appellant prevented their completing it, they may now claim for their work what it is reasonably worth, independent of the contract prices. What they did, and its reasonable price, was as follows, to-wit:

1500 cubic yards grading and 5600 ft. or excavating, at 14c. per yd

$ 910 00

800 perches stone work, at $1 75 per perch

1,400 00

Total

$2,310 00

That they received of appellant $1,462; the balance, $848, they ask judgment for. They further state that the contract was in writing, and was put into the hands of Mr. Cunningham, who was superintendent of the work, appellant assuring them that they might examine it whenever they wished, and therefore they did not keep a copy nor annex it to their petition, and as the sight of it was always refused them, they cannot state its terms precisely.

Appellant's answer is in substance as follows: That appellant and respondents did, on the 10th February, 1849, enter into a contract, whereby the latter were to do the grading and excavating and build the walls of two warehouses, a lard-rendering house, two smoke-houses, the foundations of a hanging house and a slaughtering house--all of which were to be used in the business of slaughtering hogs, pork packing and lard making; that the contract was in writing, and put into the hands of E. L. Cunningham, by the consent of both parties, subject to the inspection of either, which contract was the only one ever made between said parties, was filed with said answer. Its terms are briefly as follows: Respondents were to build the walls of two smoke-houses, sixty-five feet front by one hundred and twenty feet deep, two stories high, with a cellar; also, a lard-rendering house and two smoke-houses, with cellars, and three stories high, all of stone; also, the foundation walls of a frame hanging house, and of a frame slaughtering house; also, to do all the cellar digging and excavating necessary to be done. The contract particularly specifies the thickness of the walls, the location of the different buildings, their doors, windows, &c. Respondents were to build the walls, and furnish the materials therefor, for $1 62 1/2 per perch, and do the excavating for fourteen cents per cubic yard. All the walls for all the buildings, except for the smoke-house, were to be done by July 1st, 1849, and for the smoke-houses by the 15th September, 1849, under a penalty of $10 for each day of delay beyond said times; for the excavating, payment was to be made as it progressed, for the stone work two-thirds as it progressed, and for the remaining third of the price appellant was, at the completion of the work, to give his note at four months. The contract closes in these words: “It is further understood that the workmanship and materials for said building are to be under the immediate direction of E. L. Cunningham. The said Cunningham direct the amount of money to be paid to Lee & Dolen.”

The answer further states, that appellant never required respondents to stop work, but wished them to complete it; that they proceeded slowly with their work, and put in bad materials, and that on the 16th of June Cunningham objected to some wall then being constructed by them, and told them that he could not receive it, and that they must take it down and do it over, according to the contract; that they refused so to do, abondoned the work. Appellant notified them that if they abandoned the work he should go on with it at their expense; that respondents notwithstanding left, and therefore appellant employed hands and obtained materials and went on with the work; that labor and materials had risen; that the buildings were not yet completed, and that the delay beyond the time the respondents were to have the work done was to his damage $1,000; that by reason of the increased prices of labor and materials the cost to him in completing the work embraced in the contract, over that under the contract prices, will be very great, but, as all is not yet done, how much over is unknown; that the damage to him, however, by reason of respondents' abandoning the work, is, at least, $1,500; that he has ever been ready and willing to comply with his part of the contract, and asks judgment that his damages be allowed against respondents' claim.

Respondents replied, denying all indebtedness to appellant (the case was tried at the return term, and a verdict given for plaintiffs, which was set aside on defendant's motion). On the trial the respondents introduced the following testimony: The contract, filed with appellant's answer. Upon the points assigned by respondents in their petition as breaches of the contract by appellant, and justification for their abandoning the work, to-wit: Refusal to pay, as required by the contract; refusing to let them see the contract, or have a copy, and stopping their going on with the work. They, by their witnesses, gave in substance the following testimony: As to refusal to pay them, they show that about ten days or two weeks before they quit the work, Cunningham objected to the manner in which certain walls of two cellar piers were made, in that enough mortar was not used, and that which was used had not enough lime in it, and directed that this work (some two or three perches) should be taken down and done over. Lee (who was a stone-mason and superintended the doing of the stone-work, Dolen not being a mason, nor present at the work), refused to do it. Cunningham told him he should pay him no more money till he did. Saturday (which was pay-day) came, and Lee asked for money, which was refused, on the ground that said work was not done over as directed. A few days afterwards Lee did it. There is no evidence of any other refusal to pay. Cunningham testified that, except in this instance, he always paid as asked, for both before and after this work had been done right; that neither party measured the work as it was progressing, and when L. & D. left not near all the excavating was done, and of all this testimony of C.'s none is made or attempted to the contrary.

As to the refusal of the sight of the contract, or the giving of a copy, respondents give evidence of but one refusal before they left. Appellant proved on this head, that on the said occasion he did refuse to show Lee the contract; the reason was, he was afraid Lee would not deliver it back to him. As to the stopping of respondents from completing the work, their evidence is, that the work might have been done better, but don't know that it ought to have been; that after Lee left, Cunningham had them taken down and built over, more solid. This was respondent's evidence.

On the part of appellant, Cunningham stated that he made objections to the piers on the morning, that the stone (large and small) were not enough mixed to make a strong wall, because the large were put on the outside and the small, on the inside, making from eight to ten joints with mortar on the inside, to three on the outside; by reason of which, the wall would settle irregularly. He said, therefore, that it must be done over, which Lee refused to do, and said he would leave. C. urged him to go on with the work, and said if he did not, appellant would, at his expense; but Lee refused to do so. On the same day, C. saw Dolen twice, and told him what had occurred, and advised him to go and see Lee about it, or he would go on with the work at their expense. Dolen replied that he had nothing to do with it. Lee had before said that Dolen was not his partner, and afterwards Dolen said he had not signed the contract, but Lee, for him. After this, the next day, Lee not returning to the work, appellant hired five men who went to work on the building, and he increased the number as he could, and carried on the work as fast as he could. He had the objectionable piece taken down and rebuilt as he directed Lee to do it, the day after Lee left. As rebuilt, they were stronger, and none too strong. Walls built with the large and small stones properly mixed, and so that the joints and mortar both on the inside and outside are in equal quantity, are better and stronger.

Respondents further gave evidence of a conversation between Dolen and...