Moore v. McCullough

Citation8 Mo. 401
PartiesMOORE & PORTER v. MCCULLOUGH.
Decision Date31 January 1844
CourtUnited States State Supreme Court of Missouri

The judgment of the Circuit Court in this case was affirmed by a division of the court. See same case in 5 Mo. R. 141, and 6 ibid. 444

APPEAL FROM COOPER CIRCUIT COURT.

HAYDEN and DAVIS, for Appellants. 1. In order to entitle the complainant to a decree against the defendants for a specific performance of the contract for the lot in question, it devolves upon him to show that he has fully paid for the lot, as stated in his original bill of complaint; or that he has fully satisfied the plaintiff therefor, under the alleged agreement and settlement of accounts, as set forth in his said amended bill of complaint. By the evidence in the cause, he has not sustained the allegations in either bill. 2. A decree for a specific performance of a contract is a matter in the sound discretion of the court; and unless the court be satisfied, from all the circumstances, that the claim of complainant to the decree prayed for be fair, just, and free from all fraud and circumvention on the part of complainant, the court cannot, upon principles of equity, interpose in his behalf, but will leave him to his remedy at law. 6 Johns. Ch. R. 223, Seymour v. Delancy, and authorities there cited; 1 Maddock's Ch. R. 405; 2 Peters' Cond. R. 116; 1 Bacon, 110, 111; 5 Peters, 276, Cathcart and others v. Robinson; 2 Johns. Ch. R. 23, Osgood v. Franklin; 2 Cowen, 139; 3 Cowen, 504. 3. If the facts of this case, as shown by the testimony, satisfy the mind of the Chancellor that the complainant, by fraudulent representations to the defendants, Moore & Porter, procured from them an agreement to settle, and an actual settlement of the account for carpenter's work done upon the house mentioned in the amended bill, and by such fraud and false representations obtained from them, Moore & Porter, an allowance for a larger sum of money than the work was actually worth, then the complainant has no right to set off the amount so allowed against the price which he agreed to pay for the lot. 4. The court erred in refusing to permit the defendants to show, by the deposition of Luther Carter, that the work done upon the house of defendants was only, by admeasurement, worth $865 56, as also in rejecting the testimony of James Carter and Jesse Homan, as offered by defendants. 5. The court erred in permitting James Huston, one of the defendants and an interested witness, to testify in the cause.

ADAMS and LEONARD, for Appellee. 1. Huston was properly received as a witness. See 1 Phillips' Ev. 53, in notes; 1 Johns. R. 556, 576, 577, Beebe and others v. Bank of New York; Trustees of Huntington v. Nicoll, 3 Johns. R. 566; 2 Johns. Ch. R. 550, 626; 1 Pere Williams, 596, in point. 2. There was no foundation laid in defendants' answer to open and surcharge the settlement alleged in the amended bill. 3. The settlement was conclusive, and could only be opened upon the ground of fraud positively charged and proved, or for errors or mistakes specifically set forth and alleged in the answer. Fonblanque's Eq. 32, and 439, in notes; 1 Maddock's Treat. 102-3; Comyn on Contracts, 473, in notes; 2 Marshall, 338; 2 Starkie's Ev. 18, 19; Stoughton v. Lynch, 2 Johns. Ch. R. 689; 1 Story's Eq. 497, 601; James v. McKennon, 6 Johns. R. 559; Lyons v. Talmadge, 14 Johns. R. 516, side page; 3 Wend. 653; 2 Tucker's Com. 417.4. The evidence rejected by the court was irrelevant to the issue.

NAPTON, J.

This was a bill in chancery to compel the conveyance of a lot of ground in Boonville. The bill, answers and replications, are not materially different from what they were in 1840 (see 6 Mo. R. 445), and I shall therefore refer to that opinion for the statement of the issues involved. The only issue, as I then thought, presented by the bill and answers was, whether the settlement between the defendants and Huston and McCullough was final, and embraced the whole amount of the bill of items furnished, or was only partial and conditional, to be subject to a subsequent re-adjustment of the account, and regulated by a new admeasurement of the work. On the hearing of the case, the Circuit Court confined the testimony to this issue, and refused to hear evidence conducing to prove the exorbitance of sundry items in the bill of charges upon which the alleged settlement was founded, and the action of the Circuit Court in this particular was approved in the opinion given in 1840.

I am still unable to perceive any reason for changing that opinion. The complainant alleges, in his bill, that there was a final settlement between the parties, and that his note to the defendants, for the price of the lot, was embraced in this settlement. The defendants insist that there was no such settlement: they admit that they had a partial settlement, to the amount of $858; but aver, that the note for $340 (given for the lot) was retained to secure them against errors in the settlement of accounts, and that this settlement was made with an understanding between all the parties that the work was to be re-measured and priced by disinterested carpenters, and the bill to be regulated accordingly. If the complainant fails to establish a settlement, such as charged in the bill, he is not entitled to a decree. In this event an inquiry into the correctness of the charges made in the bill of items becomes unnecessary. Proof that there is no settlement, no account stated, examined, and accepted, is sufficient to defeat the bill. On the other hand, if the settlement was established or admitted, to authorize the defendants to open that settlement, and “surcharge and falsify” the account, the defendants must distinctly charge the mistakes or errors of which they complain 4 Vesey, 411 Stoughton v. Lynch. 2 Johns Ch R 218 The defendants, however, do not admit any settlement, no basis is laid for any allegations relative to the falsity or exorbitance of the charges, no distinct and substantive allegations of this character are contained in the answer, and consequently any proof in relation to such matters would be irrelevant to the issue.

The only question remaining to be determined is, whether upon the bill, answer, and evidence in the cause, the Circuit Court was justified in the conclusions to which it arrived, that a final settlement was made between these parties. The details in the testimony are as follows

Huston, a witness on behalf of the complainant, testified, that in August, 1836, he undertook the building of a house for the defendants, Moore & Porter, that about the month of September, complainant. McCullough, entered into partnership with him in this job, that the work was finished in March, 1837; that after the completion of the work, witness and McCullough made out their bill of charges, which amounted to $1 198 70, and went to Moore & Porter's shop to settle, that Moore & Porter objected to the bill, as too high, that there was much dispute about the prices, that witness professed his readiness to correct errors, if any existed, but the errors he alluded to were errors in the extension and addition of the account, that defendants proposed that the work should be measured and priced, to which witness assented, but McCullough objected, that the matter was finally settled, and the account equally divided between witness and complainant, without objection from the defendants, that Moore & Porter paid to witness his part of the bill, amounting to $599 35, and settled with McCullough, by paying him some eighty dollars in cash, then deducting the price of the lot mentioned in the bill, and executing their note to him for the balance. The witness understood the matter to be finally settled, and the lot paid for Witness further stated, that after this settlement McCullough demanded his note for the purchase money of the lot, but Moore & Porter refused to let him have it, he then demanded their note as a set-off against his note, to which Porter assented, provided, it should be expressed that it was given for the work done on the house; that Porter thereupon commenced writing a note, with a statement of the consideration for which it was given, but McCullough said he would have none but a plain note, that the accounts were frequently added, and no errors of addition discovered

Hood, another witness for complainant, testified, that on the 3rd December, 1836, when the bond for the title of the lot was made by Moore & Porter, McCullough was about to leave the room, without giving his note for the purchase money, when he turned back and observed he had not given his note, but would do so, to which Moore replied, that it was hardly necessary, as he...

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    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...v. Cunningham, 275 Mo. 128, 204 S.W. 1100; Hector v. Mann, 225 Mo. 228; State ex rel. v. Hawkins, 169 Mo. 615, 70 S.W. 119; Moore v. McCullough, 8 Mo. 401; Kronenberger v. Binz, 56 Mo. 122; Quinlan v. Keiser, 66 Mo. 605; Marmon v. Waller, 53 Mo. App. 610; McKeen v. Bank, 74 Mo. App. 281; St......
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