Menne v. Neumeister

• Decision Date: 05 April 1887
• Parties: OTTO MENNE, Respondent, v. GOTTLIEB NEUMEISTER, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 300

OTTO MENNE, Respondent, v. GOTTLIEB NEUMEISTER, Appellant.

Court of Appeals of Missouri, St. Louis.

April 5, 1887

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Affirmed.

ED. L GOTTSCHALK, for the appellant: The answers to the special issues are not signed by the foreman or by any other person. Sess. Acts, 1885, pp. 213, 214; Sage v. Brown, 34 Ind. 469.

A. R TAYLOR, for the respondent.

OPINION

LEWIS P. J.

On April 10, 1885, the defendant offered, and the plaintiff accepted, a written proposal to furnish all labor and materials for a two story brick building, according to plans and specifications, for the sum of $3,082. The plaintiff charges that the defendant, in building the house, committed sundry breaches of the contract, by departures from the specifications, for which he asks damages in the sum of $1,325. In a second count, the petition alleges that the plaintiff, through a mistake of fact, has paid to the defendant an excess of five hundred dollars over what was actually due him, for which also he asks judgment. A jury found for the plaintiff fifty dollars on the first count, and for the defendant on the second. The defendant appeals.

The answer, after a general denial, avers that the defendant's bid, as originally written, was for the sum of $3,782, but that, after its delivery to the plaintiff, the figure seven was erased and the figure zero substituted without the defendant's knowledge or consent. It is further averred that, at the time of the making of the contract, it was agreed between the plaintiff and the defendant that the specifications should be changed in certain particulars; whereby, instead of using new brick throughout, there should be used old or second hand brick in certain described parts of the work; and the excavating, instead of being done by the defendant, was to be done by the plaintiff. It is denied that the plaintiff has paid the contract price, or any excess, as alleged, and averred that the defendant has on his part fully performed his contract.

Upon the defendant's request, the following special interrogatories were submitted to the jury. Their answers were written on the same paper and following the interrogatories, respectively, as here transcribed:

" 1. State whether or no the written bid of the defendant, Neumeister, of April 10, 1885, was, after its execution by Neumeister, and acceptance by Menne, changed or altered without the consent and knowledge of the defendant, Neumeister, by inserting in said bid the figure ‘ zero’ in place of another figure, which was where the figure ‘ zero’ now is, in the figures 3,082? Ans. No change."

" 2. State whether or no the specifications, offered in evidence by the plaintiff, were, by mutual consent of the plaintiff and the defendant, changed or altered as to any material part of the same? Ans. There was a change."

" 3. State whether or no the defendant, Neumeister, has complied with the plans and specifications agreed upon for the erection of said building? Ans. He has not."

" 4. State whether the plaintiff has sustained damages by reason of the alleged failure on the part of the defendant to comply with the specifications, as alleged in the plaintiff's petition? And if so, state the total amount. Ans. Fifty dollars."

" 5. What is the aggregate amount of all the payments made by the plaintiff to the defendant on account of the erection of the house in question? Ans. Twenty-six hundred and ten dollars ($2,610)."

The general verdict was duly signed by the foreman of the jury but no signature was attached to the special findings. The defendant claims that this omission constituted reversible error. The statute directs that " the verdict of the jury, as well as any special findings, shall be reduced to writing and signed and returned into court by the foreman." Sess. Acts, 1885, p. 213. In Indiana, where a statute similar to ours prevails, it has been held that the omission of the foreman's signature to the special findings is fatal. Sage v. Brown, 34 Ind. 469. But the facts in that case were somewhat peculiar, and should hardly furnish a rule for this occasion. The court remarked: " It was the province of either party to demand that the special verdict should be properly signed, and that the questions should be answered; and upon such demand being made, it was the duty of the court to keep the jury together until the interrogatories were fully answered, and the answers thereto properly signed by the foreman; " and then added: " But in this case, this course was rendered impossible by the action of the parties and the court, in consenting that the jury might seal up their verdict and deliver it to the clerk, who afterwards published it in court. The agreement did not say in express terms that the jury might separate after they had delivered their verdict to the clerk, but this may be inferred. The jury seemed to so understand the agreement, for they did separate, and were not in court when the verdict was returned." From all this it is inferable that, but for the impossibility of any objection from either party to the want of a signature, before the separation of the jury, the defect would have been considered as waived by the failure of either party to demand a signing. This, we think,...