McConey v. Wallace

• Decision Date: 24 May 1886
• Citation: 22 Mo.App. 377
• Parties: D. C. MCCONEY, Appellant, v. SOLOMON WALLACE ET AL., Respondents.
• Court: Missouri Court of Appeals

22 Mo.App. 377

D. C. MCCONEY, Appellant,

v.SOLOMON WALLACE ET AL., Respondents.

Kansas City Court of Appeals, Missouri.

May 24, 1886.

APPEAL from Jasper Circuit Court, HON. M. G. MO. GREGOR, Judge.

Affirmed.

The case and facts are stated in the opinion.

GALEN SPENCER and O. H. PICHER, for the appellant.

I. Until it is shown that the production of the primary evidence is out of the party's power, no other proof is, in general, admitted. The existence and execution of the original paper must first be proved, and that it was lost without the party's fault. 1 Greenl. Evid., sects. 84, 558; 1 Phill. Evid. (5 Am. Ed.) 218; Christy v. Cavanaugh, 45 Mo. 375; Blondeau v. Sheridan, 81 Mo. 545.

II. Evidence of damage must be certain, and the damages should not be left to conjecture and speculation, and should be precisely commensurate with the injury. Marsh v. Richards, 29 Mo. 99; Fox v. Decker, 3 E. D. Smith (N. Y.) 150; 2 Greenl. Evid., sect. 253; Blanchard v. Ely, 21 Wend. (N. Y.) 342.

III. The measure of damages for failure to erect a building according to contract, is what it would “cost to make the building conform to what the builder contracted it should be.” Haysler v. Owen, 61 Mo. 270; Yeats v. Ballentine, 56 Mo. 530; Creamer v. Bates, 49 Mo. 525; Lee v. Ashbrook, 14 Mo. 379. Or,“the sum which would command the material and work for making good the defects.” Blanchard v. Ely, 21 Wendell (N. Y.) 342.

IV. Where it is agreed that a building shall be erected for $5,500, according to plans and specifications “ to be” furnished, it is implied that such plans and specifications shall be such as can be reasonably complied with for that sum. 2 Kent's Com. 555; 1 Bl. Com. 60; 1 Addison Cont. (3 Am. Ed.) 377; Nash v. Town, 5 Wall. (U. S.) 689.

V. A surety has a right to stand upon the very terms of his contract. Any alteration made without his consent will discharge him. Miller v. Stewart, 9 Wheat. (U. S.) 680; Zimmerman v. Judah, 13 Ind. 286; Grant v. Smith, 46 N. Y. 93; McKay v. McDonald, 5 Ala. 388; Taylor v. Johnson, 17 Ga. --; Blair v. Ins. Co., 10 Mo. 560; 3 Kent's Com. 124.

VI. One of two obligees can release or modify a joint obligation. Clark v. Cable, 21 Mo. 223; Henry v. Mt. Pl. Tp., 70 Mo. 500; Ryan v. Riddle, 78 Mo. 521.

PHELPS & BROWN, for the respondents.

I. There was no error in admitting secondary evidence of the contract and specifications. Due search was shown, and the execution of the contract was clearly established.

II. The instructions refused to plaintiff were properly refused. They were predicated on the unfounded hypothesis that the contract and specifications were signed after the execution of the bond (given by the contractor), while the evidence showed they were made and signed prior to the execution of the bond. One of them was based on no evidence produced at the trial. Another left out of view every other element of loss and damages sustained, except the cost of the house as built, and the cost of a building according to said plans, etc. Defendants are entitled to damages from loss of rents. 2 Sutherland Dam. 482. An instruction which leaves out of view any material fact is properly refused, or if based on a partial statement of facts. Baranda v. Blumenthal, 20 Mo. 162; Wyatt v. Ry. Co., 62 Mo. 408; Mead v. Brotherton, 30 Mo. 201.

III. The measure of damages here is the difference between its value in its defective condition and its value if completed in compliance with the contract, together with the rental value, during the time defendants were deprived of its use by the breach of contract as to time. 2 Sutherland Dam. 482; White v. Brockway, 40 Mich. 209.

IV. An alteration in a building contract which does not substantially vary the original agreement does not operate a discharge of the sureties. 2 Parson's Cont. 721.

V. A party having the right to proceed against a surety for delinquency of principal may avail himself of same cause of action by way of counter-claim. McAdow v. Ross, 53 Mo. 199; Sewing Machine Co. v. Saylor, 86 Pa. 287.

VI. The finding of the court, on the whole case, was for the right party.

PHILIPS, P. J.

This is an action to enforce a mechanic's lien for material furnished by plaintiff for the erection of a brick store house and opera house. The balance claimed by plaintiff is $1,335.55.

Wallace was the contractor, and the other defendants were the owners. The contract price was $5,500.00, of which the owners paid $4,741.69.

The contract was reduced to writing and signed, and the contractor gave bond, with the plaintiff as one of the sureties, for the faithful performance of the contract. The defendant owners, by way of counter-claim, set up in their answer the foregoing facts, and alleged that Wallace, the contractor, had not kept and performed his said contract; that both the materials furnished and work done did not come up to the requirements of the contract, in many particulars specified, and that the building was not completed for two months after the time agreed upon for its delivery to them, whereby they lost the use and rent thereof; and that, by reason of the premises, they were damaged in the sum of $1,865.00, for which they asked judgment.

The reply set up, that by the agreement, the plans and specifications referred to in the answer were to be such as could be reasonably carried out and complied with for the sum of $5,500.00; whereas, the plans and specifications furnished by defendants, and in accordance with which the building was erected, were such that the work done and materials furnished necessarily cost, and were reasonably worth, seven thousand dollars. The reply then undertook to present the issue that the contract, after its execution, was so altered by agreement between Wallace and the defendants, as to operate as a discharge of the plaintiff as surety thereon.

Trial by jury was waived. The court, sitting as a jury, found the issues for plaintiff as against the contractor Wallace, and for the other defendants that plaintiff take nothing by his action.

From this judgment plaintiff has appealed.

I. The first error assigned by appellant is that the court improperly admitted secondary evidence of the contents of the written contract without having sufficiently accounted for the absence of the written instrument. The evidence of defendants showed that the contract was executed, and had been in the possession of some of them during the time the work was progressing. In whose possession it was, when last seen, was not clear; but none of them had it at the time of the trial, and they could not find it, after search.

The rule in this respect is that the trial judge is to determine the sufficiency of the proof, under the facts and circumstances of each particular case, that the original document is lost, or otherwise out of the power of the party offering the secondary evidence. Proof, such as is calculated to reasonably satisfy the mind of the court that the original is lost, and that it cannot be found, after search made at the proper place, is all that is required. “The object of the proof is merely to establish a reasonable presumption of the loss of the instrument, and this is a preliminary inquiry addressed to the discretion of the judge.” 1 Greenl. Evid. (14 Ed.) note b, p. 118; Ib. sect. 558; Christy v. Cavanaugh, 45 Mo. 377.

We hold that the proof offered by the defendants complied with the rule.

II. It is next objected that the evidence introduced by defendants, touching the character and extent of the damages sustained by reason of the defective material

and work, was too indefinite to entitle the defendants to more than nominal damages.

There is no question but the rule of law requires that the evidence, in such case, must be of tangible facts, upon which the triers can hang a reasonable belief, and from which they may make rational deductions and calculations. And if the party upon whom rests the burden of this proof leaves the jury to grope wholly in the dark, or to mere conjecture, he ought not to recover any substantial damage. If the court credited the witnesses for the defendants, and we are to presume that it did, its conclusion was not drawn from intangible statements, or based on mere conjecture.

The plaintiff claimed a balance of $1,335, while the defendants claimed damages to the amount of $1,865. From the defendants' proofs we find the following statements of witnesses: “I'd rather have the materials on the ground than the building as it is.” “The general appearance of the building indicated something wrong about it, and that it was not a first-class job.” (The contract called for first-class material and work). “The specifications were not complied with in many particulars; material and workmanship were very inferior.” The witness, who furnished the tin and helped to put it on, testified: “The decking was very poor, of rotten boards, of uneven thickness, wouldn't hold nails, and had lime and mortar on them; ten per cent. of the decking was rotten. I suppose as many as ten knots came out,” “I am a carpenter. The...