Lingenfelder v. Wainwright Brewing Co.

• Decision Date: 17 March 1891
• Citation: 15 S.W. 844,103 Mo. 578
• Parties: Lingenfelder et al., Executors, v. The Wainwright Brewing Company, Appellant
• Court: Missouri Supreme Court

15 S.W. 844

103 Mo. 578

Lingenfelder et al., Executors, v. The Wainwright Brewing Company, Appellant

Supreme Court of Missouri, Second Division

March 17, 1891

[Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court. -- Hon Shepard Barclay Judge.

The second amended petition upon which this cause was tried alleges that Edmund Jungenfeld "during his lifetime to-wit, from the eighteenth day of June, 1883, to the twentieth day of December, 1884, at the special instance and request of the defendant (which request was made shortly before the commencement of said work, to-wit, on the sixteenth day of June, 1883), performed work and labor for said defendant as architect in forming and drawing plans and in superintending the erection for said defendant of a certain brewery building, together with all the outhouses outbuildings, erections and improvements belonging to, connected with or used in connection with said brewery, and all engines, boilers, machinery, apparatus and fixtures in and about the same;" that the entire gross cost of the said buildings, improvements, apparatus and machinery amounts to the sum of $ 354,227.30, as will more fully appear from the itemized statement of the cost thereof contained in exhibit "A," and that five per centum thereof, to wit, the sum of $ 17,711.36, is the reasonable value of the work and labor so performed by the said Jungenfeld; that defendant has paid on account of said work and labor the sum of $ 10,500, leaving the balance of $ 7,211.30 due, for which plaintiffs sue.

The answer is, first, a denial of each and every allegation of the second amended petition, and, next, the averment of a counterclaim alleging that, on said sixteenth day of June, 1883, the said Jungenfeld agreed to make the plans for and to superintend the erection of the stock-house, one of the buildings enumerated in exhibit "A," which was to be constructed with wooden floors, to be covered with a layer of asphalt to make them water-tight; that as such superintendent it was the duty of the deceased to see that all work in and upon said stock-house was carefully and properly done, and to cause the same to be so done; that, in disregard of his said duty, the deceased negligently suffered and permitted said wooden floors to be improperly laid, and to be laid in disregard of the requirements of the plan for their construction, in consequence whereof defendant was compelled to have them taken up and laid anew at an expense and loss of $ 3,000, for which it asks judgment.

The reply admits that on the sixteenth day of June, 1883, the said Jungenfeld agreed and undertook to make plans for and superintend the erection and construction of said stock-house, and affirms that the same is a part of the contract set forth in the petition; but denies all other allegations of affirmative matter in said answer contained.

The cause was referred to Frederick A. Wislizenus to try all the issues therein. The referee heard the case, and on the second of July, 1886, filed his report, and returned into court with his said report the testimony taken by him in the cause.

In the hearing before the referee it was shown that Jungenfeld, on or about the sixteenth of June, 1883, entered into contract with the Wainwright Brewery Company to design the plans and make the drawings and specifications for certain brewery buildings which the company was then about to erect, and to superintend their construction to completion for a commission of five per cent. on the cost of the building; and defendant at the very outset of the hearing conceded that the cost of said building was $ 220,405.93.

Plaintiffs claimed that the deceased was also entitled to commission on the cost of grading the premises done before the buildings were commenced, and on the cost of a refrigerator plant; all of which defendant denied.

The items in dispute were grouped under seven general heads, representing an aggregate cost of $ 133,821.37. The referee found that the deceased "was employed as architect and superintendent of the architectural work only, and that the preliminary grading, the subsequent purchasing and placing of machinery -- in a word, all the items as to which I have found against the plaintiffs were not in the scope of Mr. Jungenfeld's employment."

The referee found that the total cost of all the work within the terms and scope of Jungenfeld's contract with the brewery company was $ 235,479.13, and allowed a commission of five per cent. thereon, amounting to $ 11,773.96, from which he deducted the credit of $ 10,500 given in the petition, leaving a balance of $ 1,273.96, for which he found for the plaintiffs on the cause of action set forth in the petition.

Upon the defendant's counterclaim the referee found that the floors of the stock-house were improperly laid; that deceased was responsible for the defect, and that the defendant in remedying it was necessarily put to an expense of $ 2,716.36, for which sum the referee found in favor of the defendant and against the plaintiffs; and, deducting from the amount so found to be due the defendant on the counterclaim the amount found to be due the plaintiffs on the cause of action set forth in the petition, the referee found the plaintiffs to be indebted to the defendant in the sum of $ 1,492.17, for which amount he recommended judgment in favor of defendant and against plaintiffs as executors of the deceased.

Upon the coming in of the referee's report plaintiffs filed their exceptions to the same. The tenth exception (and the only one involved in the present controversy) is as follows: "Tenth. Because the referee found against plaintiffs' right to compensation on the item of 'refrigerating plant' and disallowed the same."

The court overruled all of said exceptions, except the tenth, which it sustained in and by the following order:

"Wednesday, March 9, 1887.

"Now at this day, the exceptions heretofore filed herein by the plaintiffs to the referee's report being submitted to the court, and duly considered, it is ordered that so much of said exceptions as refer to the disallowance by the referee of the item of commission or percentage on the refrigerator plant be sustained, and that this cause be re-referred to Frederick A. Wislizenus, and that said referee be and is hereby directed to allow plaintiffs credit on that item, and that he make a report of his proceedings herein with all convenient speed. And it is further ordered that all the other exceptions of plaintiffs herein be overruled."

And defendant then and there duly excepted to the action of the court in sustaining said exception of plaintiffs, and in directing said referee to allow plaintiffs credit for the compensation or percentage on the refrigerator plant, and in directing him to state the account anew on that basis.

And afterward, to-wit, on the twenty-third day of March, 1887, the parties, plaintiffs and defendant, made and filed the following stipulation in said cause, to-wit:

"The parties, plaintiffs and defendant, to the above-entitled cause, hereby waive a re-reference of the cause as heretofore directed by the court, and agree that the court may, upon the facts and evidence reported by the referee, pronounce the conclusion of law and enter judgment accordingly.

"Dexter Tiffany,

"B. Schnurmacher,

"Attorneys for Plaintiffs.

"Kehr & Tittman,

"Attorneys for Defendant."

And thereupon the court entered the following judgment:

"Monday, April 4, 1887.

"Now again come said parties, and the court, having duly considered the report of said referee and the evidence by him reported and returned into court, doth find the issues herein joined as follows: On plaintiffs' cause of action in favor of plaintiffs in the sum of $ 4,720.71, and on defendant's counterclaim in favor of said defendant in the sum of $ 2,766.13. It is, therefore, considered by the court that plaintiffs recover of said defendant the sum of $ 1,954.58 and their costs in this behalf expended, and have execution therefor."

And within four days thereafter, to-wit, on the fifth day of April, 1887, defendant filed its motion for new trial in said cause for the reasons following, to-wit:

"First. Because the court erred in allowing the plaintiffs credit for the item of commission or percentage on the refrigerator plant, to-wit: The sum of $ 3,446.75, and erred in including the latter in the sum, for which the court finds for the plaintiffs on their cause of action.

"Second. Because, upon the special findings of fact made by the referee in his report concerning said item, and upon the evidence returned by him regarding the same, the plaintiffs are not entitled to said commission or percentage, and the finding upon said item should have been for defendant.

"Third. Because the court erred in its conclusion of law upon the facts found, and the evidence reported by the referee in respect to said item.

"Fourth. Because, upon the facts found and upon the evidence reported by the referee, the court should have found only for the plaintiffs on their cause of action for the sum of $ 1,273.96, and it was error to find for them any sum in excess of said sum of $ 1,273.96.

"Fifth. Upon the facts found by the referee and the evidence returned by him with his report, the judgment should have been for the defendant for the amount recommended by the referee, with interest and costs."

The court overruled the motion for new trial, and defendant appealed.

The controversy in the court below finally turned upon the single question whether or not, upon the facts found by the referee and the evidence returned by him, the deceased was entitled to commissions on the cost of the refrigerator plant. In considering the subject, it should be borne in mind that...