Richardson v. Shaw

• Decision Date: 28 February 1876
• Parties: WEST RICHARDSON, Plaintiff in Error, v. HENRY SHAW, Defendant in Error.
• Court: Missouri Court of Appeals

1 Mo.App. 234

WEST RICHARDSON, Plaintiff in Error,

v.HENRY SHAW, Defendant in Error.

St. Louis Court of Appeals, Missouri.

Feb. 28, 1876.

Under a contract for building, the payments to be made in installments, as certain parts of the work are finished, if the structure, while in progress, be destroyed by inevitable accident, the builder is entitled to be paid such installments as are fully earned; but he has no claim for a proportional part of the next installment, partially earned.

ERROR to St. Louis Circuit Court.

Reversed and remanded.

Farish & Griffin, for plaintiff in error, cited: Add. on Con. 450, 449; Niblo v. Bensse, 44 Barb. 57, and authorities cited; Schwartz v. Deagling, 55 Ill. 345.

Glover & Shepley, for defendant in error, cited: Adams v. Nichols, 19 Pick. (Mass.) 275; Davis v. Smith, 15 Mo. 467; Trippe v. Armetage, 5 M. & W. 699; Bunsley v. Smith, 3 Ala. 123.

LEWIS, J., delivered the opinion of the court.

On February 9, 1872, plaintiff contracted to furnish the materials, and build for defendant, on land belonging to the latter, a wooden-framed house, for the sum of $5,102, to be paid as follows: $1,000 when the framework should be up; $1,000 when the building should be inclosed; $1,000 when it should be ready for the plasterer, and the balance, $2,102, when the work should be finished. The frame work was up, and the building nearly inclosed, when a violent storm prostrated and destroyed the structure. Afterwards, on May 14, 1872, the parties entered into a new contract for the carpenter's work upon a brick building to be erected in place of the other. This contract contained a stipulation as follows: “It being understood and agreed by the parties hereto that one thousand dollars of the last payment of twenty-five hundred dollars has been advanced and paid on a former contract, which said contract is hereby set aside and no longer binding on either of the parties hereto, and that said payment of one thousand dollars will apply on this contract and will form a part of the last payment on the same.”

This suit was instituted to recover the sum of $1,426.32, claimed by plaintiff for work and materials furnished upon the first building, up to the time of its demolition. Plaintiff prayed the court to instruct the jury as follows:

1. “If the jury believe from the evidence that plaintiff did the work sued for in this case, under a contract with defendant, and the building was destroyed, before completion, by inevitable accident, without the fault of plaintiff, and that plaintiff complied with his contract except so far as prevented by such accident, they will find for the plaintiff the reasonable value of the work done, not to exceed the contract price; unless they further believe from the evidence that plaintiff released defendant from all liability to him under said contract, and from all obligation to pay plaintiff for said work.”

2. “If the jury believe from the evidence that the building in question was being erected by plaintiff in a workmanlike and skillful manner, and that during the progress of its erection it was destroyed by a heavy wind, against which, by the use of proper precaution, the plaintiff could not have protected it, then the fact of the destruction of such building is no bar to a recovery by plaintiff herein, if he is otherwise entitled to recover in this action.”

3. “The jury are instructed that it is the duty of a contractor for the erection of a building to protect his work, in all reasonable modes, so as to preserve it from accident; and that, if he proceeds with his work in a workmanlike and skillful manner, and according to contract, and uses all...