Rivers v. Blom

• Decision Date: 14 May 1901
• Citation: 63 S.W. 812,163 Mo. 442
• Parties: RIVERS v. BLOM.
• Court: Missouri Supreme Court

63 S.W. 812

163 Mo. 442

RIVERS v. BLOM.

Supreme Court of Missouri, Division No. 1.

May 14, 1901.

COUNTERCLAIM — PLEADING — APPEAL — REVIEW OF ERRORS NOT EXCEPTED TO — AWARDING JUDGMENT ON IMPROPER EVIDENCE.

1. In an action by an architect against the owner of a building to recover for services, a counterclaim founded on the improper construction of the building was properly dismissed, where the owner had compromised and settled a claim for damages against the contractor founded on the same improper construction as was alleged in the counterclaim.

2. Where the defendant made no objection to the admission of evidence of a release of the

counterclaim set forth, such release not having been pleaded, nor saved any exception thereto, nor urged such error in the motion for a new trial, such error cannot be urged in the supreme court for the first time.

3. Where evidence of the compromise of a counterclaim was improperly admitted, though no objection thereto was raised, and such evidence completely barred defendants recovery, it was not error for the court to pronounce judgment in accordance therewith.

Appeal from St. Louis circuit court, James E. Withrow, Judge.

Action by Julius F. Rivers against Anders G. Blom. From a judgment in favor of the plaintiff, the defendant appeals. Affirmed.

The defendant contracted with one M. C. Geimer to build for him two houses, Nos. 1715 and 1717 Allen avenue, in the city of St. Louis, and employed the plaintiff, as an architect and superintendent, to supervise the work. When the buildings were finished, a dispute arose between Blom and Geimer, and, upon River's advice, Blom sued Geimer for damages for improper and faulty construction. Thereupon Geimer sued Blom in a separate action for the balance due under his contract. Blom and Geimer compromised their controversy, and both said suits were accordingly dismissed. Afterwards Rivers began this action against Blom for services rendered and money expended, at Blom's request, in and about the case of Blom against Geimer, and asked judgment for $2,114.73. Blom's answer is a general denial, with special pleas, and three separate counterclaims, the third being for $4,511.47, damages claimed to have been sustained by Blom in consequence of Rivers' failure to perform his duties as architect, by permitting Geimer to use defective material and construct the houses in a faulty manner. The reply is a general denial. The case was sent to a referee, and in the progress of the case the evidence adduced showed the fact to be that the claim set up in the third counterclaim was identical in all respects with the claim set up by Blom in his suit against Geimer, and thereupon the referee refused to hear any further testimony in support of the third counterclaim, and held that, as Blom had discharged Geimer, he thereby necessarily released Rivers from all liability on account of such matters. The referee found for the plaintiff upon his cause of action, and for the defendant upon his second counterclaim, and against the defendant on his first and third counterclaims. On exceptions the circuit court modified the referee's finding, and entered judgment for plaintiff for $53.60, after allowing defendant's second counterclaim, and confirmed the referee's finding as to the first and third counterclaims. Thereupon the defendant appealed.

Henry M. Post, for appellant. H. B. Davis and Geo. E. Smith, for respondent.

MARSHALL, J. (after stating the facts).

The only error assigned is the ruling as to the defendant's third counterclaim. The defendant contends — First, that under the pleadings no issue as to the discharge of Geimer is raised, and hence such matters cannot be considered in this case; and, second, that the defendant's claims against Geimer and Rivers were based upon distinct contracts, and that there was no privity between Geimer and Rivers, and therefore the release of Geimer did not release Rivers. Defendant concedes that the grievances and wrongs asserted in the third counterclaim against Rivers are identical with those asserted in his suit against Geimer, and further concedes that he is not entitled to double compensation for the same injuries, but he maintains that the evidence does not disclose any compensation received from Geimer, and hence if he recovers from Rivers, the compensation will be single.

The record does not contain all the proceedings or evidence before the referee. The testimony is not preserved, but in place of it the parties have stipulated as to what the evidence showed with respect to the matters involved on this appeal. That stipulation is as follows: "On the hearing before the referee, plaintiff introduced evidence tending to prove the allegations of his petition. There was evidence showing that defendant, Blom, on the 21st day of October, 1893, instituted a suit in the St. Louis circuit court against Michael C. Geimer and others, as contractors, for $4,511.47 damages for the faulty construction and defective material entering into the construction of a certain building in the city of St. Louis known as Nos. 1715 and 1717 Allen avenue, for the erection of which they were contractors, the account therein sued on being identical with Exhibit A, referred to in defendant's answer as the...