Morley v. Carlson

• Decision Date: 06 June 1887
• Citation: 27 Mo.App. 5
• Parties: P. J. MORLEY, Respondent, v. JOHN CARLSON, Appellant.
• Court: Kansas Court of Appeals

27 Mo.App. 5

P. J. MORLEY, Respondent, v. JOHN CARLSON, Appellant.

Court of Appeals of Missouri, Kansas City.

June 6, 1887

APPEAL from Jackson Circuit Court, HON. JAMES H. SLOVER, Judge.

Reversed and case dismissed.

The case is stated in the opinion.

O. T KNOX and M. CAMPBELL, for the appellant.

I. Neither the original, nor amended account, nor the evidence shows any indebtedness of Carlson to P. J. Morley. There is Morley's admission that Carlson's bill against Morley is $511.15, while the charge of $469.80 " cash on account of materials and labor," is unproved, and not the slightest evidence of the three items last stated is offered.

II. Plaintiff had no right to testify that defendant left his work unfinished, or that he abandoned the work. Such evidence was irrelevant to this account, the whole issue being covered by the inquiry, " Did Morley pay $469.80 cash for materials and labor," and did he pay a labor bill, sand bill, and a cement bill, owing by Carlson by order or on compulsion?

III. The demurrer to the evidence should have been sustained, and defendant's instruction, numbered one, should have been given. 2 Greenl. Evid., sect. 107; Bailey v. Gibbs, 9 Mo. 44; Jewett v. Stewart, 1 Me. 117; Lynch v. Bogy, 19 Mo. 170; Allen v. Mulledy, 21 Ill. 76; Allen's Adm'r v. Richmond, 41 Mo. 302; Jones v. Wilson, 3 Johns. 34; Winson v. Savage, 9 Metc. 347; Whiting v. Sullivan, 7 Mass. 108.

IV. Plaintiff's instruction should not have been given, for there was no evidence on which to base it, and it submits a question of law to the jury, and it states a false legal conclusion from the hypothetical facts given. Whether it was necessary for Morley to pay Carlson's debts is purely a question of law and for the court. Morley v. Durfee, 69 Mo. 469. And the conclusion that Carlson's refusal to pay his debts forced Morley to pay them is not either law or sense. Authorities, supra, under third point herein made. And that the lien law does not vary this, observe (1) That there could have been no judgment against Morley. Rev. Stat., Mo., sect. 3185. (2) That Carlson's property is first liable for the judgment, and only such residue as cannot be made from Carlson can be levied of the property liened. Same section above. (3) That Morley's only liability arises after the owner shall have been compelled to pay the judgment by law. Rev. Stat., Mo., sect. 3191.

KAGY & BREMERMANN, for the respondent.

I. As to the first point of appellant, both the evidence in the case, and the verdict of the jury disposes of it, if there is any.

II. As to the second point, the question of abandonment of the work plays nothing more than an incidental part in the case; it was not submitted to the jury as part of the hypothesis of fact made in plaintiff's instruction. The issue in the case is broader than appellant states it to be. The authorities quoted by appellant have no relevancy to this question. A reference to one or two of them will demonstrate this. Bailey v. Gibbs (9 Mo. 44), decides that assumpsit could not be maintained as on an implied promise to pay, where an officer having an execution in his hands voluntarily paid it off and returned it into court satisfied, and then sought to recover from the execution defendant. Lynch v. Bogy (19 Mo. 170), is to the effect that there can be no recovery for merely voluntary services performed in selling defendant's real estate without employment or request on part of defendant. These are fair samples of the cases quoted. The section in Greenleaf to which appellant refers us, goes further than even learned counsel will relish, since it says (sect. 108), that a legal obligation alone may be sufficient to infer a request from; and further, that a legal duty may be paramount to the party's actual protestation.

III. Was Morley merely a volunteer, or did he pay this debt through a legal duty resting upon him? Was Carlson a stranger? Was there no relation of privity between him and Morley. Mr. Campbell leaves out of view the fact found by the jury that there was a contract between Morley and Stone to build Stone a house; that Carlson was the sub-contractor, and as such employed the labor and ordered the materials which went into Stone's foundation. Section 58, of Phillips on Mechanic's Liens, states nothing more than has already been recognized in our own state, when it says that the sub-contractor is charged with notice of the original contract. Heege v. Fruin, 18 Mo.App. 139. What position did Morley find himself in after Carlson left the work? He found himself with mechanics' lien notices which had been served on Stone for the amount due for the last three items of plaintiff's account. The...