Lucas v. Cella

• Decision Date: 28 November 1905
• Citation: 91 S.W. 996,115 Mo. App. 395
• Parties: LUCAS v. CELLA.
• Court: Missouri Court of Appeals

91 S.W. 996

115 Mo. App. 395

LUCAS v. CELLA.

St. Louis Court of Appeals. Missouri.

November 28, 1905.

Rehearing Denied December 12, 1905.

1. APPEAL—REVIEW—DEFENSE NOT MADE BELOW.

In an action by plaintiff to recover for services rendered, presentation of a defense for the first time by a supplemental brief on appeal was too late.

2. SAME.

Where, in an action on a contract, the issue as to the making thereof was on substantial evidence found in plaintiff's favor, and no reversible error in rulings on evidence or instructions appears, a judgment for plaintiff will be affirmed on appeal.

Appeal from St. Louis Circuit Court; Jesse A. McDonald. Judge.

Action by Joseph H. Lucas against Louis A. Cella. Judgment for plaintiff, and defendant appeals. Affirmed.

C. E. Krum and Bond & Bond, for appellant. Blodgett & Davis, for respondent.

BLAND, P. J.

The suit is upon the following account, which was filed as an exhibit with the first count of the petition, the count on which the case was tried and submitted to the jury:

"Louis A. Cella, to Joseph H. Lucas, Dr.

"For services rendered between, on or about the first day of August, 1902, and on or about the first day of March, 1903, as consulting engineer in forming and drawing plans and specifications, and making estimates and procuring and making contracts for the erection of a steam heating plant, engines, boilers, generators, steam separators, steam heaters and fire extinguisher, in `Cella Building,' Twenty-First and Washington avenue, St. Louis, Missouri, as per agreement, at five per cent. of contract price.

                                                           Contract
                                                            Price
                McMann Plumb. Co., steam heating
                 plant................................... $  6,000 00
                Ideal Engine Co., engines................    2,497 00
                Fairbanks-Morse, boilers.................    1,600 00
                Crocker-Wheeler Co., Generators..........    2,000 00
                Steam & Appliance Co., steam separators..      140 00
                Steam & Appliance Co., steam
                  heaters................................      150 00
                Standard Fire Extinguisher Co
                  fire ex................................   11,250 00
                                                           __________
                                                           $23,637 00
                

"Five per cent. of $23,637.00—$1,181.85,— amount due."

Plaintiff's evidence tends to show that he rendered most of the services alleged in the petition and stated in the account, and was ready and willing and able to render the whole of them, but was prevented by the defendant, and his evidence further tends to show that the services were rendered under an express contract with the defendant. Defendant's...