Montague Compressed Air Company v. City of Fulton
| Decision Date | 04 June 1912 |
| Citation | 148 S.W. 422,166 Mo.App. 11 |
| Parties | MONTAGUE COMPRESSED AIR COMPANY, Appellant, v. CITY OF FULTON et al., Respondents |
| Court | Missouri Court of Appeals |
May 8 1912, Argued and Submitted
Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.
AFFIRMED.
Judgment affirmed.
John A Gilliam for appellant.
(1) The court erred in admitting evidence of alleged representations by plaintiff's agent before contract was made. Curtiss v. Waterloo, 38 Iowa 266; Singleton v Fore, 7 Mo. 515; Gooch v. Conner, 8 Mo. 391; Adams v. Railroad, 74 Mo. 553; Crutchfield v. Warrensburg, 30 Mo.App. 456; Savage v. Springfield, 83 Mo.App. 323. (2) The court erred in admitting the evidence of Judge N. D. Thurmond as an expert engineer, his own testimony being that he knew nothing about engineering except what Bryan Obear told him. Bonnett v. Gladfelt, 24 Ill.App. 533; Walton v. Railroad, 40 Mo.App. 544. (3) The court erred in admitting evidence of Judge Thurmond as to alleged statements of Obear in regard to what the well at the Insane Hospital was doing, that being immaterial and not res pestae, but res inter alios acta, and it was a collateral issue. Vale v. Butler, 111 Mass. 55; Waugh v. Shunk, 20 Pa. St. (8 Harris) 130; Water Co. v. Aurora, 129 Mo. 540; Adams v. Railroad, 74 Mo. 553. (4) The court erred in ruling that the burden was on the plaintiff to show that there was an insufficiency of water in the wells. Defendants were bound to show there was a sufficiency of water. Windle v. Jordan, 75 Maine, 149; Stewart v. Ashley, 34 Mich. 183; Blunt v. Barrett, 124 N.Y. 117; Heineman v. Heard, 62 N.Y. 448; Richardson v. George, 34 Mo. 104; Tow Co. v. Ins. Co., 52 Mo. 529. (5) The court erred in admitting evidence of alleged misrepresentations of the pump either alleged to be made before the contract as testified by Lovelace, McCall, Thurmond and Wenger, or after the contract as testified to by Thurmond. And in admitting this conclusion which usurped the province of the jury. Q. You may state whether or not the failure to get the fifty gallons in the small well was on account of the deficiency of the water or the deficiency of the pump? A. The deficiency of the pump. Objected to as a conclusion. Objection overruled and exception saved. The admission of this conclusion was reversible error. Curtiss v. Waterloo, 38 Iowa 266; Singleton v. Fore, 7 Mo. 515; Gooch v. Conner, 8 Mo. 391; 17 Cyc. 27, 28, 45-48; Walton v. Railroad, 40 Mo.App. 544; Musick v. Latrobe, 184 Pa. St. 375; Edwards v. Worcester, 172 Mass. 104; Ivory v. Deerpark, 116 New York, 476; Eubank v. Edina, 88 Mo. 650; Benjamin v. Railroad, 50 Mo.App. 602; Gavish v. Railroad, 49 Mo. 274; Gutridge v. Railroad, 94 Mo. 468; King v. Railroad, 98 Mo. 235; Nash v. Dowling, 93 Mo.App. 156; Koenig v. Railroad, 173 Mo. 698; Dammann v. St. Louis, 152 Mo. 186; Real Estate Co. v. French, 142 S.W. 449. (6) The court erred in giving improper instructions for the defendant. Water Co. v. Aurora, 129 Mo. 540; Devers v. Howard, 88 Mo.App. 253; State ex rel. v. Milling Co., 156 Mo. 620; Smoke Preventer Co. v. St. Louis, 205 Mo. 220; Sedgwick on Damages (6 Ed.), 349; Waterworks Co. v. Joplin, 177 Mo. 496; Depot Co. v. St. Louis, 76 Mo. 393; Morse v. Brackett, 98 Mass. 205; Callanan v. Brown, 31 Iowa 333; Albers v. Merchants Exchange, 138 Mo. 140. (7) The court erred in sustaining demurrer to plaintiff's second count, and in refusing to set aside non-suit thereon. State ex rel. v. Holladay, 61 Mo. 319; Light & Power Co. v. New York, 62 N.Y.S. 726; Dunn v. St. Louis, 7 Mo.App. 592. (8) The court erred in modifying plaintiff's instructions. Water v. Aurora, 129 Mo. 540; Smoke Preventer Co. v. St. Louis, 205 Mo. 220; Depot Co. v. St. Louis, 76 Mo. 393. (9) The court erred in refusing to give instructions asked by plaintiff. Smoke Preventer Co. v. St. Louis, 205 Mo. 220; Water Co. v. Aurora, 129 Mo. 540; Depot Co. v. St. Louis, 76 Mo. 393; 29 Am. & Eng. Ency. Law (2 Ed.), 1095, 1096; Morse v. Brockett, 98 Mass. 205; Mansfield v. Trigg, 113 Mass. 350; Ormond v. Henderson, 77 Miss. 34; 24 Am. & Eng. Ency. Law (2 Ed.), 1079. (10) The court erred in refusing to grant a new trial on the ground that the verdict was against the evidence and against the weight of the evidence and the admission of improper evidence and giving improper instructions. Smoke Preventer Co. v. St. Louis, 205 Mo. 220; Morse v. Brackett, 98 Mass. 205; Baird v. New York, 96 N.Y. 567; Regensburg v. Notestine, 2 Ind.App. 97; Hardee v. Carter, 94 Ga. 482; Nelson v. Overman, 38 S.W. 882; Gutiweiler's Adm'r v. Lackman, 39 Mo. 100; Peck v. Traction Co., 131 Mo.App. 141; Feiertag v. Feiertag, 73 Mich. 302; Sinker v. Diggins, 76 Mich. 561; Maxted v. Fowler, 94 Mich. 112; People v. Abbott, 97 Mich. 487; Colby v. Portman, 115 Mich. 95; Juergens v. Thom, 39 Minn. 458; Railroad v. Butler, 57 Pa. St. (7 P. F. Smith) 335; Wing v. Chapman, 49 Vt. 36; Bradley v. Cramer, 66 Wis. 298; Sumamon v. Moore, 142 S.W. 494-497. (11) The sale was on trial and the contract was entire, and the failure to object within thirty days after installation on November 27, 1907, was an acceptance which waived all conditions and the fact that the defendant continued to use the compressor till the day of trial and thereafter to the present time, and used the small pump till after suit brought, and by their carelessness broke the large pump and failed to pay for its repair, each and all of said acts amount to an estoppel to dispute plaintiff's claim, and a waiver of every condition, and this court should reverse the case and direct entry of judgment for the plaintiff. Water Co. v. Aurora, 129 Mo. 540; Benjamin on Sales, (7 Ed.), sec. 595; Smoke Preventer Co. v. St. Louis, 205 Mo. 220; 29 Am. & Eng Ency. Law (2 Ed.), 1095, 1096, and notes; 24 Am. & Eng. Ency. Law (2 Ed.), 1079; Morse v. Brackett, 98 Mass. 205; Mansfield v. Trigg, 113 Mass. 350; Ormond v. Henderson, 77 Miss. 34; Nelson v. Overman, 38 S.W. 882; 19 Ky. Law Rep. 161; Johnson v. McLane, 7 Blackford (Ind.) 501; Leppel & Co. v. Pratt, 126 Mich. 453; Hagadorn v. McNair, 96 N.Y.S. 417.
J. R. Baker for respondent.
(1) The circumstances under which a contract was made and the object in view should always be considered in giving meaning to the terms thereof. And in the interpretation of the contract, it is a recognized rule that you should seek out the construction the parties thereto placed upon it and apply that construction. Tetley v. McElmurry, 201 Mo. 382; Nardyke & Marmon Co. v. Kehlor, 155 Mo. 643. (2) The court did not err in holding that the burden was on plaintiff to show there was an insufficiency of water in the well. Marshall v. Ferguson, 94 Mo.App. 175; Wolf v. Railroad, 155 Mo.App. 125; 16 Cyc., 927. (3) The evidence shows that the interpretation given by the parties to this clause was that plaintiff would pump 250 gallons of water from the large well and fifty gallons per minute from the small well. And the rule is that where a clause or phrase is ambiguous the court will sustain the interpretation of that clause given to it by the parties themselves when the contract is made. Eaton v. Coal Co., 125 Mo.App. 194; Bader v. Mill Co., 134 Mo.App. 135; Woolen Co. v. Wollman, 87 Mo.App. 659. (4) There was no evidence of any written contract between plaintiff and defendant, or written memorandum of any kind, covering items set out in the second count. This being true, the demurrer was properly sustained. R. S. 1909, sec. 2778; Savage v. City, 83 Mo.App. 323; Perkins v. School Dist., 99 Mo.App. 483. (5) It is axiomatic that a party must show complete performance on his part of his contract before he can recover upon it. Myer v. Christopher, 176 Mo. 580.
This is an action, the petition in which contains three counts.
The first count alleges a contract between plaintiff and defendant city, the plaintiff a manufacturing corporation, one of the defendants the city of Fulton, a city of this state, the others certain of its officers. For brevity we will hereafter refer to the defendants in the singular, intending by that the city. The contract is in the form of a proposal from plaintiff, accepted by defendant city, and all in writing, under which plaintiff proposed to furnish to the city "two Obear Air Lift Displacement Pumps of the aggregate guaranteed capacity of 300 gallons of water per minute when lifting water from a nine inch and six inch cross sectional diameter wells any height with eighty pounds air pressure, conditioned of course that the wells will furnish 300 gallons of water per minute." Plaintiff was also to furnish an air compressor of specified size and make, This is followed by specifications in detail as to the capacity of the proposed plant and for the purposes of this case unnecessary to be here set out. The first count prays for judgment for this amount with interest from December 31, 1907, and for costs.
The second count charges that after the installation and acceptance of the pumps and air compressor plaintiff, for the purpose of reinstalling the pumps at a lower working point in the well, at the instance and request and understanding with defendant, selected, ordered and caused to be shipped to defendant the necessary mechanism and materials for installation of the pumps at a cost of $ 643.40. Itemizing this account, plaintiff asks judgment for that amount.
There is a further count in the petition, setting up an equitable cause of action, which it is unnecessary to notice as it was disregarded at the trial and no error is...
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