Reifschneider v. Beck
| Decision Date | 31 May 1910 |
| Parties | LOUIS R. REIFSCHNEIDER, Respondent, v. H. W. BECK, Appellant |
| Court | Missouri Court of Appeals |
April 7, 1910, Argued and Submitted
Appeal from St. Louis County Circuit Court.--Hon. John. W McElhinney, Judge.
AFFIRMED.
STATEMENT.--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 $ 1112.78, 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 fifty 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 four hundred and five dollars and fifty cents ($ 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 sixteen dollars, 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 $ 1111.78 less $ 14.30 allowed defendant on account of meals, finding a total due plaintiff of $ 1097.48. 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 $ 1001.58. 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 memorandum 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 and that the price charged for such material in said accounts was its 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 if 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 $ 1112.78 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 granted leave and considered the reply of plaintiff to that as refiled, and at the same time the court overruled the exceptions of H. W. Beck to the referee's report and entered judgment in favor of plaintiff and against defendant for $ 1001.58 and costs. Defendant H. W. Beck in due time filed his motion for new trial which was overruled and exceptions saved and an appeal duly perfected to this court by him.
Judgment affirmed.
George F. Beck for appellant.
(1) Where the allegation of the cause of action or defense to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, but a failure of proof. R. S. 1899, sec. 798. (2) A cause alleged to be based on a joint and several contract cannot be sustained by proof of a cause founded on the separate contract of one of the alleged joint promisors notwithstanding the provisions of section 892, R. S. 1899. Myers v. Railroad, 120 Mo.App. 288; Timber Co v. Railroad, 180 Mo. 420; Davis & Rankin v. Creamery Assn., 63 Mo.App. 477; Bank v. Campbell, 34 Mo.App. 45; Hempstead v. Stone, 2 Mo. 65; Erwin v. Devine, 24 Ky. (J. J. Marsh), 204; Gamble v Kellum, 97 Ala. 677; Black v. Struthers, 11 Iowa 459; Murray v. Davis, 6 Jones (N. C.) 341; Thompson v. Tenn., 100 Ga. 234; Rohr v. Davis, 9 Leigh (Va.) 30. (3) An amendment which changes the cause of action upon a joint contract, to a cause of action upon a several contract, constitutes an entire change in the cause of action, which is not permissible. Slaughter v. Davenport, 151 Mo. 26; Pattison's Code Pleading, sec. 974; 1 Am. and Eng. Ency. of Pl. & Pr., p. 586; Heman v. Glann, 129 Mo. 325; Lumkin v. Collier, 69 Mo. 170. (4) The finding of the referee that plaintiff contracted to erect a barn for defendant and furnish the material therefor is inconsistent with plaintiff's cause of action based on a sale and delivery of material, and destroys the claim on which his suit is brought. King v. Campbell, 107 Mo.App. 496; King v. Brockschmidt, 3 Mo.App. 571. (5) Where an action involves the examination of a long account, the court may order a trial before a referee without the consent of the parties. Roth v. Wire Co., 94 Mo.App. 236; Bank v. Owen, 101 Mo. 558; Tobacco Co. v. Walker, 123 Mo. 662; Raines v. Lumpee, 80 Mo.App. 203. (6) Where the case is one for compulsory...
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