Schmidt v. Rozier

• Citation: 121 Mo. App. 306,98 S.W. 791
• Parties: SCHMIDT v. ROZIER.
• Decision Date: 22 December 1906
• Court: Court of Appeal of Missouri (US)

98 S.W. 791

121 Mo. App. 306

SCHMIDT v. ROZIER.

St. Louis Court of Appeals. Missouri.

December 22, 1906.

1. FRAUDS, STATUTE OF — WORK AND LABOR CONTRACT — CONSTRUCTION.

A contract between a tailor and customer for the making of a coat and vest was for goods, wares, and merchandise, within the statute of frauds (Rev. St. 1899, § 3419), and was not, because calling for garments of unusual pattern and design, a contract for work and labor to be done and materials to be furnished.

2. SAME — PLEADING — NECESSITY.

Where an action was begun before a justice of the peace, the appearance of the defendant operated to raise the general issue, thus denying the contract sued on, so that the statute of frauds was available as a defense.

3. SAME — OBJECTIONS — INSTRUCTIONS.

Where, in an action on a contract, defendant did not object to evidence tending to establish a parol agreement or call the court's attention to the contract as falling within the statute of frauds, he was entitled to raise such question at the conclusion of plaintiff's testimony, by a requested instruction specifically stating that the evidence showed the contract within the statute and asking for direction of verdict.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by H. A. Schmidt against Edwin A. Rozier, originally before a justice of the peace. From a judgment of the circuit court in plaintiff's favor, defendant appeals. Reversed.

This case originated before a justice of the peace. The plaintiff is a tailor in the city of St. Louis. He received an order from the defendant for a coat and vest; the price agreed upon being $72.50. The coat was to be a Prince Albert, with a wide lap in front, broad lapels, and full skirt. The testimony of plaintiff and his witnesses tended to prove that the defendant called upon him at his place of business and ordered a coat and vest at the price mentioned, instructing him that he desired the coat to be made with a wide lap in front and lapels somewhat broader and the skirt somewhat fuller than was then being worn. Plaintiff attempted to dissuade the defendant from his notion in that respect, but defendant insisted the coat should be made as directed, and he so made the same. Upon the garments being completed, they were delivered to the defendant, and he returned them for alterations. In accordance with defendant's request, plaintiff made the alterations required and delivered the garments a second time, and within a few days thereafter the defendant returned them for further alterations. After having tried them on the defendant, and examining them again, plaintiff discovered that they were perfect fitting garments, as he says, and that he could not improve thereon in that respect, whereupon he so announced to the defendant and declined to further alter the same. Defendant thereupon refused to accept them. Several reputable tailors who had examined the garments on the defendant testified that the fitting and workmanship were perfect; that the only possible objection was to the coat — i. e., the wide lapels and full skirt — and, as said, these were so made in accordance with defendant's instruction. The defendant's testimony tended to prove that he ordered the coat made with a wide lap, broad lapels, and full skirt as indicated, and that the plaintiff did not make the coat as ordered. He asserts that the garments made him look old-mannish and refused to accept them. Plaintiff having declined to alter them to suit, he continued in his refusal to accept them. The trial was had before the court; a jury being waived. There was testimony pro and con on the issues and it was conflicting. The testimony as to the contract was introduced by the plaintiff without objection of any sort from the defendant. At the conclusion of the plaintiff's case defendant requested the following instruction, which the court refused: "The court instructs the jury that the evidence introduced by the plaintiff in this case shows that the contract sought to be recovered upon is within the statute of frauds, and that the provisions of said statute have not been complied with. Your verdict, therefore, must be for the defendant." Exception was saved, and after the overruling of proper motions for review the case comes here by appeal.

John B. Denvir, for appellant. M. B. Levy and M. G. Levinson, for respondent.

NORTONI, J. (after stating the facts).

1. The record presents two paramount questions calling for the opinion of the court, and they alone will be commented upon in the opinion. The other matters presented are trivial and will not be discussed.

The first question is: The contract in evidence being one for a coat and vest of peculiar design and pattern, in that the coat had a wide lap in front and broad lapels as well as a full skirt, and was, therefore, different from those being manufactured and sold daily by the defendant, was it a contract for goods, wares, and merchandise, within the meaning of the statute of frauds (section 3419, Rev. St. 1899), or was it a contract for work and labor to be done and materials to be furnished by the plaintiff, and for that reason not within the influence of such statute? The plaintiff asserts the contract to be one for work, labor, and materials. The defendant asserts it to be for goods sold, etc. The question thus presented was long mooted in the jurisprudence both of England and this country, but was settled in a manner entirely satisfactory to the courts of this state by the court of Queen's Bench in England in Lee v. Griffin, 1 Bes. & Smith, 272. The adjudication of that case established the very simple and intelligent rule to the effect that, "when the subject-matter of the contract is a chattel to be afterwards delivered, then the cause of action is goods sold and delivered, and the seller cannot sue for the work and labor." This court, in Burrell v. Highleyman, 33 Mo. App. 183, and the Supreme Court in Pratt v. Miller, 109 Mo. 78, 18 S. W. 965, 32 Am. St. Rep. 656, each, after mature deliberation, adopted and approved the doctrine of Lee v. Griffin, supra, as the rule of decision in Missouri, and the law so stands. Now, in the case in hand, the subject-matter of the contract being a coat and vest, chattels, to be afterwards delivered, it is the opinion of the court that the cause of action is for goods sold, etc., notwithstanding the peculiar pattern of the garments mentioned, and it therefore falls within the statute of frauds as such rather than without that statute as a cause of action for work, labor, and materials furnished.

2. There was no plea of the statute of frauds. The case having originated before a justice of the peace, no formal pleadings were required, and it was, therefore, not necessary to specially plead the statute. The appearance of the defendant in cases originating before justices of the peace operates, however, to raise the general issue, and therefore the case stands as though the defendant had answered by general denial. The law has been settled in this state since the decision of Wildbahn v. Robidoux, 11 Mo. 659, to the effect that, when the agreement or contract is denied in the defendant's answer, it is not necessary for him to specially insist upon the statute as a bar to the action, inasmuch as such denial operates to require the plaintiff to produce legal evidence of the existence of the agreement, and parol proof is not such evidence; the case not otherwise falling within the exceptions mentioned in the statute. As a correlative of the proposition just stated, the rule with us is likewise established to the effect that it devolves upon the defendant to specially plead the statute of frauds only in those cases in which the contract sued upon is admitted in the answer, and with very few apparent exceptions in decided cases this has been the rule in Missouri since our early history as a state. Where the contract is not admitted, the statute is always available, however, under the plea of the general issue. Wildbahn v. Robidoux, 11 Mo. 659; Hook v. Turner, 22 Mo. 333; Allen v. Richard, 83 Mo. 55; Springer v. Kleinsorge, 83 Mo. 152-154; Boyd v. Paul, 125 Mo. 9-14, 28 S. W. 171; Hillman v. Allen, 145 Mo. 638, 47 S. W. 509; Hurt v. Ford, 142 Mo. 283-301, 44 S. W. 228, 41 L. R. A. 823; Phillips v. Hardenburg, 181 Mo. 463-473, 80 S. W. 891; Hackett v. Watts, 138 Mo. 502-510, 40 S. W. 113; Bernhardt v. Walls, 29 Mo. App. 206; Miller v. Harper, 63 Mo. App. 293; Van Idour & Co. v. Nelson, 60 Mo. App. 523-527; Beckmann v. Mepham, 97 Mo. App. 161-164, 70 S. W. 1094; Devore v. Devore, 138 Mo. 181-185, 39 S. W. 68. See, also, Brown on Statute of Frauds (5th Ed.) § 511; 9 Ency. Pl. & Pr. 709; Bliss on Code Pl. (3d Ed.) § 353, and note thereto for Missouri rule. It therefore follows that the appearance of the defendant having operated to raise the general issue in this case, and the contract being thus denied, the statute of frauds was available as a conclusive defense to the action, provided it was worked by the defendant; for it is familiar law that the statute is an affirmative action, provided it was invoked by the defense and may be waived.

It is sometimes mentioned as an optional defense, and it is true that, if the party entitled to its benefits fails to avail himself of its provisions in an appropriate manner, it will be considered as waived. Yeoman v. Mueller, 33 Mo. App. 343; Van Idour & Co. v. Nelson, 60 Mo. App. 523; Miller v. Harper, 63 Mo. App. 293; Neuvirth v. Engler, 83 Mo. App. 420. It therefore becomes important to ascertain whether, under the facts in this record, the statute was presented to the court in a proper manner. As said in the statement of facts accompanying the opinion, all of the testimony tending to establish a parol agreement for the purchase of a coat and vest at the price of $72.50 was introduced and admitted without objection from the defendant tending to question its competency, and the fact that the contract...