Marsh v. Richards
Decision Date | 31 October 1859 |
Citation | 29 Mo. 99 |
Parties | MARSH, Respondent, v. RICHARDS, Appellant. |
Court | Missouri Supreme Court |
1. Where a party sues on a special contract to recover compensation due on its performance, he must show performance thereof on his part, or a legal excuse for non-performance.
2. Where a contractor engages to furnish materials and perform certain work for another--as to construct the brick work of buildings--and he does perform the contract, but not in the manner or with the materials required, he may, notwithstanding, if the party for whom the work is done receive and enjoy the same, recover compensation therefor.
3. The value of the work as actually done proportionally to the price fixed in the contract is the measure of damages in such case.
4. Where a contractor engages to construct buildings with pressed brick fronts, and he uses a brick of inferior quality, the relative cost of pressed brick and the kind of brick used is a proper matter to be considered by the jury in ascertaining the compensation to be allowed the contractor.
5. When two causes of action are joined in a petition, they should be stated separately.
Appeal from Hannibal Court of Common Pleas.
The plaintiff in his petition set forth that on the 12th of February, 1857, he entered into a written agreement with the defendant to furnish the materials for and to construct and finish the walls of certain buildings. The stipulations of the contract are set forth, and it is stated that the fronts of the houses were to be built of pressed brick. For the work done plaintiff was to be paid at various rates of $8, $8.50, $9.50 and $10 per thousand bricks. The work was to be completed by the 1st of September, 1857, and to be paid for as it progressed. Plaintiff then alleges that he duly performed the undertakings made incumbent upon him by said agreement “except in the manner hereinafter stated.” He then proceeds to set forth the amount of work done under the contract, together with certain items of extra work; also the particulars in which he failed to comply with the contract. It is admitted that pressed brick were not used as stipulated, and as a justification for not using them it is alleged that defendant consented to modify the agreement in that respect and to allow plaintiff to use “stock” brick. It is also admitted that the stipulated work was not completed at the time agreed upon, September 1, 1857. This failure was charged to be owing to the fault and omission of defendant. The work, it was alleged, was completed about November 1, 1857, and delivered to and accepted by the defendant. The petition then proceeds as follows: “Plaintiff says that defendant owes him, for work and labor done and performed and materials furnished him in the construction of said buildings, the following sums.” He then sets the items of work down with their value, being the same items as had previously been set forth in the petition as done under the contract (including the extra work) and charged for at the contract price. He admitted payments amounting to $1,225, and claimed a balance of $960.94.
The answer admitted the execution of the contract as alleged. It denied that the amount of brick work done was asgreat as was stated in the petition; denied the alleged modification of the contract so far as the “pressed brick” were concerned; denied that the failure to complete the work stipulated for at the time agreed upon was owing to the fault or omission of defendant; and set up the noncompliance of plaintiff with the contract by way of counter claim.
At the trial the plaintiff introduced the contract in evidence, and also evidence showing the amount of the brick work done and the value of the extra work done, and rested The defendant then asked the court, among other instructions, to give the following: The court refused so to instruct. The defendant offered to prove the relative market value in Hannibal, in 1857, of pressed and common and stock brick. The court ruled out the evidence at the instance of plaintiff. Witnesses stated that they could not estimate the difference of market value in Hannibal between a pressed brick front and a stock or common brick front. Evidence was also introduced bearing on the subject of the default of the defendant in obstructing the completion of the brick work at the time stipulated.
The court, at the instance of the plaintiff, gave the following instructions:
The court refused the following instruction asked by defendant: “The jury ought to find a verdict for the defendant on his counter claim for the amount of damage it may appear from the evidence he sustained by reason of the failure of the plaintiff to complete his part of the work on said buildings by the first day of September, 1857; and the measure of such damages is the reasonable value of the...
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