Rainey v. Smizer

• Decision Date: 31 March 1859
• Citation: 28 Mo. 310
• Parties: RAINEY, Appellant, v. SMIZER & GRIMM, Respondents.
• Court: Missouri Supreme Court

28 Mo. 310

RAINEY, Appellant,

v.SMIZER & GRIMM, Respondents.

Supreme Court of Missouri.

March Term, 1859.

1. In a suit to recover damages for the breach of a written contract entered into with two persons, both must join as parties plaintiff. The fifth section of the second article of the practice act is inapplicable to such a case. (R. C. 1855, p. 1218.)

Appeal from St. Louis Law Commissioner's Court.

George Smizer entered into a contract with James C. Rainey and Jacob Grimm, of which the following are the substantial provisions: “Whereas Joseph Probeck contracted to do certain mill-wrighting for the undersigned, George Smizer, and whereas he, the said Joseph Probeck, has failed, leaving the work unfinished, & c., we, James C. Rainey and Jacob Grimm, agree and by these presents bind and oblige ourselves to do all the unfinished mill-wrighting on said mill and distillery, to have all things pertaining thereto, of the work now unfinished, in complete running order, &c., &c., for which the said Smizer is to pay to the said Rainey and Grimm the sum of $270, also $105 due the said Rainey for mill-wrighting done for Joseph Probeck on said mill, which sum the said Smizer assumes the immediate payment of. * * * It is understood that the said Smizer is to furnish all the material for said work, and he (the said Smizer) is to retain fifty per cent. of said payment, as per contract, as security for completion of said work, and that he (the said Smizer) agrees to pay the additional amount of fifty per cent., if the amount due is not paid upon completion of said work.”

The present suit is brought by Rainey alone to recover the sum of one hundred and five dollars, alleged to be due the plaintiff under the contract, and the further sum of forty-five dollars, alleged to be one-half the value of the work done under the contract. Grimm was made a defendant for the reason, as stated in the petition, that he had refused to become a party plaintiff and had confederated with plaintiff to hinder and delay plaintiff from recovering his demand.

The court instructed the jury that the plaintiff was not entitled to recover.

C. C. Simmons, for appellant.

C. G. Mauro and Gardner, for respondents.

SCOTT, Judge, delivered the opinion of the court.

If it is conceded that by the contract between the parties Smizer was bound to pay the plaintiff, immediately upon the commencement of the work, the sum of one hundred and five dollars, the amount due the plaintiff for services performed in building the mill under a contract with Probeck, yet that sum constituted but a part of the consideration of the contract. The refusal of Smizer to comply with his contract with ...