Miner v. Sever

• Decision Date: 29 January 1923
• Docket Number: No. 14588.,14588.
• Parties: MINER v. SEVER et al.
• Court: Missouri Court of Appeals

255 S.W. 578

MINER v. SEVER et al.

No. 14588.

Kansas City Court of Appeals, Missouri.

January 29, 1923.

Certiorari and Motion to Transfer to Supreme Court Denied April 2, 1923.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

"Not to be officially published."

Action by J. R. Miner against George A. Sever and another. From a judgment for plaintiff, defendants appeal. Armed.

Wilkinson, Wilkinson & Dabbs, of Kansas City, for appellants.

Conger R. Smith and William Moore, both of Kansas City, for respondent.

ARNOLD, J.

This is an action to enforce a mechanic's lien, and was tried upon plaintiffs second amended petition. The trial resulted in a verdict and judgment for plaintiff against both defendants and the establishment of a lien against the property described in the petition. Motions for new trial and in arrest, filed by both defendants, were unsuccessful. Defendants filed no bill of exceptions, but prosecute this appeal against the record proper only

Defendants are husband and wife, and plaintiff a contractor and builder. The petition charges that defendants, and each of them, are justly indebted to the plaintiff in the sum of $918.01 for materials and fixtures furnished and work and labor done by plaintiff at the request of defendants, and each of them, as per written contract dated September 3, 1919, in the building of a joint garage for one E. E. Culter and defendants; said garage being built on property located at 2816 and 2818 Paseo, Kansas City, Mo., defendants being owners of the property numbered 2818.

It is first urged that the trial court erred in overruling motions for new trial and In arrest of judgment in behalf of defendant Louise J. Sever, for the reason that the petition fails to state a cause of action against her, in that it is founded upon a specific contract which Is embodied in, and made a part of, said petition, which said contract, upon its face, shows that it was not executed by defendant Louise J. Sever, and that she was not a party to it.

The petition itself answers this objection against plaintiffs contention in the following language:

"That a true copy of said written contract is attached hereto marked exhibit A and made a part hereof; that the George Sever who signed said written contract is the same person as George A. Sever, defendant herein, and that the defendant George A. Sever signed said and transacted all other negotiations referred to herein between himself and plaintiff, both for himself and as agent for the defendant Louisa J. Sever."

It is true the copy of the written contract attached to the petition and marked Exhibit A does not, on its face, show that Louise J. Sever signed same in person, nor that George A. Sever signed as her agent, yet the petition charges that George A. Sever did sign the contract and that he transacted all other negotiations as her agent. It has been held repeatedly in this state, and it is the law, that the copy of a contract attached to a petition as an exhibit is no part thereof. In this connection our attention is called to the case of Pomeroy v. Fullerton, 113 Mo. 440, 453, 21 S. W. 19, 22, wherein the Supreme Court said:

"The exhibits filed with the petition form no Dart thereof, and cannot be considered in determining its sufficiency on demurrer. Peake v. Bell, 65 Mo. 224; Kern v. Ins. Co., 40 Mo. 19; Curry v. Lackey, 35 Mo. 389."

The petition itself, as above quoted, charges that George A. Sever signed the contract, not only for himself but as the agent of Louise J. Sever as well. This allegation was denied, but the verdict shows this issue was found for plaintiff. Besides there was no attack made on the sufficiency of the petition, hence it must be accorded every liberal intendment which the language thereof will justify.

It is settled law that—

"The admission of parol evidence to show that a written contract made in the name of the agent was in fact made in behalf of an undisclosed, or if disclosed, unnamed principal, does not violate the rule against the admission of parol evidence to vary the terms of a written contract." Meyers v. Kilgen, 177 Mo. App. 724, loc. cit. 735, 160 S. W. 569, and authorities there cited.

We hold against defendants on this contention.

The sufficiency of the petition is attacked on the ground that it does not allege that plaintiff performed the contract on his part, or that it was wrongfully terminated by defendants.

Again we go to the petition for answer to the objection. The petition plainly alleges that the labor and materials for which plaintiff sues were furnished to defendants at their request, and the value thereof only is sought. Under the terms of the contract plaintiff could not recover more than the reasonable value of the work, materials, and labor furnished. It was a suit on quantum meruit.

The petition alleges that plaintiff was prevented from further carrying...