Reifschneider v. Beck

• Decision Date: 31 May 1910
• Citation: 129 S.W. 232,148 Mo. App. 725
• Parties: REIFSCHNEIDER v. BECK.
• Court: Missouri Court of Appeals

129 S.W. 232

148 Mo. App. 725

REIFSCHNEIDER v. BECK.

St. Louis Court of Appeals. Missouri.

May 31, 1910.

Rehearing Denied June 14, 1910.

1. REFERENCE (§ 8)—SUBJECTS—INVOLVED ACCOUNTS.

A suit for work and material in erecting buildings was properly referred with or without consent of the parties, where it involved the examination of a very long account with which it would have been difficult for a jury to deal intelligently.

2. APPEAL AND ERROR (§ 1017)—REVIEW— REFEREE'S FINDINGS.

An appellate court may, on motion of either party, review a referee's findings, and affirm or reverse the judgment in whole or in part.

3. APPEAL AND ERROR (§ 1022)—REVIEW— REFEREE'S FINDINGS—CONCLUSIVENESS.

A finding by a referee selected by the parties will not be disturbed on appeal, where it is based on conflicting evidence and has been affirmed by the trial court.

4. ASSUMPSIT, ACTION OF (§§ 6, 26)—EXPRESS CONTRACT.

One who has furnished work and labor under a contract fixing the price can abandon the contract and sue in assumpsit, and, if an express contract is proven, the measure of the recovery is the amount stated therein, though the suit be brought on quantum meruit or quantum valebat.

5. CONTRACTS (§ 346)—ACTION—PLEADING— VARIANCE.

One electing to sue on a special contract cannot recover for money had and received to his use or upon a quantum meruit for work and labor done or services rendered.

6. PLEADING (§ 237)—AMENDMENT—CONFORMING TO EVIDENCE.

Under Rev. St. 1899, § 657 (Ann. St. 1906, p. 674), authorizing the amendment of pleadings, etc., before judgment, in furtherance of justice, it was not prejudicial error to allow one who sued on a joint contract to dismiss as to one of the two defendants and amend so as to show single liability of the other, after the referee's report, to conform to the evidence, where the answers pleaded that one of the defendants acted as agent for the other.

7. ASSUMPSIT, ACTION OF (§ 23)—JOINT LIABILITY.

Joint assumpsit may be shown under allegations that labor and materials were furnished at defendants' instance and request for their use and benefit.

8. PARTIES (§ 92)—MISJOINDER—REMEDY.

A misjoinder not apparent on the face of the petition can be taken advantage of by answer only.

9. PARTIES (§ 92)—MISJOINDER—WAIVER.

Under Rev. St. 1899, § 602 (Ann. St. 1906, p. 628), misjoinder of parties is waived unless raised by demurrer or answer.

10. APPEARANCE (§ 24)—PROCESS—WAIVER— SERVICE.

Where a defendant served in the county was dismissed, the remaining defendant who was served outside the county waived the right to question jurisdiction over him by subsequently appearing, pleading, and participating in a trial on the merits.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Louis R. Reifschneider against H. W. Beck and another. From a judgment for plaintiff, defendant H. W. Beck appeals. Affirmed.

The plaintiff commenced this action in the circuit court of St. Louis county, stating in his petition that H. W. Beck and Chas. J. Beck, who were named as defendants, are justly indebted to him in the sum of $1,112.78 for lumber, etc., sold and delivered to defendants upon their farm in St. Louis county, at defendants' instance and request, and for their use and benefit, and for work and labor furnished defendants for their use and benefit and at their request upon certain buildings erected by defendants upon their said farm. Judgment was asked for that amount and for costs. Attached to the petition was a long account embracing over 50 items. The defendants answered by a general denial. Thereupon the cause was referred, by consent of the parties; Wm. F. Broadhead, Esq., being appointed to hear and determine all the issues therein involved, who thereafter duly qualified as such referee by taking the oath as required by law. After the reference, defendants, by leave of court, filed an amended answer to the plaintiff's petition, which it is not necessary to set out further than to say that, after a general denial, it set up that Chas. J. Beck, as agent for the defendant H. W. Beck, had entered into a certain oral contract or agreement with plaintiff, whereby the plaintiff agreed to build for H. W. Beck a certain frame barn on the farm of defendant H. W. Beck, the agreement setting out what plaintiff was to furnish and what the defendant H. W. Beck was to furnish, and that the plaintiff should receive for the materials and work and labor on the barn the price and sum of $737. It then goes on to specify matters and items in which the plaintiff had failed to comply with the contract or had furnished defective material, and which defendant H. W. Beck had been obliged to furnish to complete the barn, the total amounting to $405.50, and the answer concludes that by reason of the premises "these defendants say that defendants have been damaged in the sum of $405.50, and a cause of action therefor has accrued to him (sic) against said plaintiff, and for which amount and costs said defendants pray judgment against said plaintiff." A reply, which was a general denial, was filed to this.

After the evidence had been submitted before the referee, the defendants, by consent, on July 7th filed a second amended answer, which was also a general denial and a repetition of the contract between plaintiff and defendant H. W. Beck, made through Chas. J. Beck, and the failure of the plaintiff to comply with the alleged contract; and for a second defense H. W. Beck set up the failure of plaintiff to do certain work and furnish certain material, etc., as before set out, and claimed that H. W. Beck is damaged in the amount of $550, for which amount he asks judgment. The defendant Chas. J. Beck for a separate counterclaim sets out that plaintiff owed him for meals furnished to hands in his employ in the amount of $16, for which he asks judgment. There was a general denial as reply to this answer, and afterwards, and before the referee filed his report, the plaintiff dismissed as to defendant Chas. J. Beck. At the conclusion of the hearing, the referee filed a report which he withdrew by leave of court, and afterwards filed an amended report, accompanied by a transcript of the evidence taken before him. In and by this report the referee allowed plaintiff $1,111.78, less $14.30 allowed defendant on account of meals, finding a total due plaintiff of $1,097.48. He further allowed defendant, on his counterclaim $95.90, disallowing the other items claimed by the defendant, in this way arriving at the amount in favor of plaintiff as $1,001.58. He finds and reports that on the 20th of October, 1904, the plaintiff orally contracted and agreed with the defendant Henry W. Beck, through Chas. J. Beck, as his agent, to build for the defendant the frame barn mentioned in the pleadings, describing it, and "that many but not all of the details of plan, construction, dimension, and material were determined and agreed upon between them, in part orally and in part as shown by memoranda in writing and imperfect sketches, but that no specific detailed or accurate or entire plans, drawings, or specifications were drawn up for use in the construction of said barn, nor was any specific price agreed upon for building said barn, for the labor thereon, nor for the materials to be used, except for the cement to be used in the foundation; that some of the plans, as agreed upon, were changed by defendant during the progress of the work," etc., setting out generally what the agreement was as to the details of the work and its quality. He then finds that the building of the barn was commenced on the 20th of November, 1904, and the main part completed about a month thereafter; that plaintiff sold and furnished defendant the material as mentioned and charged in the account; that the materials were used for and entered into the construction of the barn, and in the main were good, sufficient, and suitable for the purpose; that the price charged for such material in said accounts was their reasonable value; that plaintiff furnished defendant the labor employed in the construction of the barn, and the charges therefor are reasonable when reduced by the price of meals furnished by defendant to the men, as the referee had done in stating the account; and that the work done on the barn was in the main good and suitable for the structure, with the exception of the particulars for which credits were allowed defendant in his counterclaim. He then sets out the allowance on the counterclaim as above.

The defendants filed, separately, exceptions to the report, hearings on which were continued by the court from term to term until the May term, 1908. At that term and on the 29th of June, 1908, and pending a finding on the exceptions to the report, plaintiff, having previously dismissed as to Chas. J. Beck, by leave of court filed his amended petition against H. W. Beck alone, stating in this that it was filed by leave of court after the hearing of the cause before the referee, and after the report of the referee, and while the question of the approval of the report was pending before the court "for the purpose of supplying a defect in the petition and to make said petition conform to the facts proved." This amended petition then states that defendant H. W. Beck is indebted to plaintiff in the sum of $1,112.78 for lumber, cement, etc., and for labor done at the request of defendant upon certain buildings being erected on the defendant's farm, the particulars of it being set out in the Exhibit A, before filed with the original petition; that each and all of the several charges are of the reasonable value of the items; that payments had been demanded, and judgment is asked for the amount as before. The record states that thereupon and at the same time the court granted defendant leave to refile his second amended answer to the amended petition, and treated it as refiled, that being the answer filed July 7th, and...