Ott v. Moore

• Decision Date: 23 September 1929
• Docket Number: No. 4595.,4595.
• Citation: 20 S.W.2d 166
• Parties: OTT v. MOORE.
• Court: Missouri Court of Appeals

20 S.W.2d 166

OTT v. MOORE.

No. 4595.

Springfield Court of Appeals. Missouri.

September 23, 1929.

Appeal from Circuit Court, Butler County; Chas. L. Ferguson, Judge.

Action by R. C. Ott against T. L. Moore. Judgment for plaintiff, and defendant appeals. Affirmed.

John L. Poynor, of Poplar Bluff, for appellant.

COX, P. J.

Action for value of services rendered by plaintiff to defendant in moving certain buildings in Poplar Bluff, Mo., and for the use of certain tools in said work. Trial by jury; verdict and judgment for plaintiff. Defendant appealed.

The petition was in two counts. The first alleged that defendant employed plaintiff to move six houses, and agreed to pay therefor the sum of $600. The plaintiff entered upon the work and performed part of it, when he was discharged by defendant and prevented from completing the work, and asked judgment for $175, the alleged value of the work which he did. The second count alleged that, after the discharge of plaintiff, the defendant employed another party to complete the work, who, at the instance and request of defendant, used plaintiff's tools, and asked judgment for $25 for the use of these tools.

The answer denied that defendant discharged plaintiff, and then alleged that he was having the houses moved and repaired for rental purposes, and that on account of the delay of plaintiff he had been deprived of the rental of these houses for the period of six months, and was damaged thereby in the sum of $540, for which he asked judgment as a counterclaim against plaintiff.

The jury found for plaintiff for $100 on the first count and $25 on the second count. Plaintiff remitted the $25 on the second count, which was for the use of plaintiff's tools, and judgment was entered in favor of plaintiff for $100.

Defendant was the owner of six houses in the eastern part of the city of Poplar Bluff, that were occupied by tenants. On May 9, 1927, these houses were blown off their foundations and more or less injured by a windstorm. Later in the same month, defendant employed plaintiff, who was a house mover, to replace these houses upon their foundations and make needed repairs. Plaintiff entered upon the work, and did work of material value. He then became sick, and could not attend to the work, and left another man to proceed with it. This man soon quit the work. Plaintiff claimed he was discharged by defendant, while defendant claimed he quit voluntarily. There was evidence on both sides of that issue, but the jury found for plaintiff, and that finding binds us.

Error is alleged, in that plaintiff's petition alleged a contract, and his recovery was on quantum meruit,...