Shouse v. Neiswaanger
| Decision Date | 08 June 1885 |
| Citation | 18 Mo.App. 236 |
| Parties | WILLIAM O. SHOUSE, Administrator of Louis Deardorff, Deceased, Respondent, v. DAVID G. NEISWAANGER, ET AL., Appellants. |
| Court | Kansas Court of Appeals |
APPEAL from Jackson Circuit Court, HON. JOHN K. CRAVENS, Special Judge.
Reversed and remanded.
Statement of case by the court.
This is an action to enforce a mechanic's, or material man's lien, and a claim of damages by defendants for failure on the part of plaintiff to deliver the material according to contract. There is no controversy as to the regularity of the steps taken to secure the lien. The whole controversy is as to the matter of the damages claimed by defendants, David and George G. Neiswaanger. Their answer, after tendering the general issue, set up that, on or about the first day of October, 1879, they were building a livery stable in Kansas City, on which the lien is sought to be enforced, on a lot owned by them; and requiring certain lumber for joists of extraordinary length, etc., for its completion, they applied to plaintiff, who was then a lumber merchant of said city, to obtain the same; that they then made a contract with him to deliver the same to them at plaintiff's yards in said city on or by the 15th day of October, 1879, to be used in said building then in process of erection; but the plaintiff failed, etc., to deliver the said joists before the 17th day of December, 1879. By reason of this failure the completion of the building was delayed two and one-half months. Defendants then plead that they were damaged thereby, in the loss of the rents of the building during that delay in the sum of $625; that relying on plaintiff's said undertaking they erected the walls of said building and laid the floors therein in part of the building; that said joists, being very long, were designed and necessary for laying the second floor of the building, and by reason of said delay the floors already so laid were greatly damaged by the rain and snows falling and remaining thereon, to the extent of $175; that the walls of said building being delayed in their completion were damaged by the weather to the extent of $600; and that by reason of said delay the plaintiffs had to pay their superintendent his salary, etc., making the aggregate of such losses the sum of $1600.00. The reply tendered the general issue as to the new matter pleaded in the answer. The cause was, by agreement of parties, tried before the Hon. John K Cravens, as special judge, a jury being waived. On the trial the plaintiff made proof of his account and the filing of his lien. The items in the account show the materials were furnished on the following dates: October 13, 14, 20, 23, 25 31, November 29, and December 17, 1879. The affidavit to this account was made by Deardorff February 14, 1880. Deardorff has since died and this cause is prosecuted by Shouse as his administrator.
The defendants' evidence tended to show that they were engaged in erecting this building about the first of October 1879, when they applied to plaintiff to purchase the joists in question. The evidence tended to show that no such lumber was in said market, and that plaintiff had to order it, and have it prepared in a distant market; that the contract was, that plaintiff was to furnish this lumber for defendants at plaintiff's yard in Kansas City on or about the 15th day of October, 1879; and that he knew for what purpose defendants required the same, and that defendants were anxious about its prompt delivery. That on its failure to arrive at the appointed time the defendants made inquiry of plaintiff about the same, and complained of the delay: and that on going to the depot, on one occasion, defendants found that a part of the lumber was there, but plaintiff had not called for it. Their evidence tended to show that the damages claimed by them had ensued, and resulted from the delay in delivering this lumber.
Plaintiff claimed, and there was some evidence tending to support it, that the delay was consequent upon the fault of the party from whom he ordered it forwarded, and the trouble in procuring the necessary transportation; and that defendants were apprised thereof. On the conclusion of the evidence, the plaintiff asked and the court made the following declaration of law:
" If the court sitting as a jury believe from the evidence that on or about October 1, 1879, the defendants, Neiswaanger, furnished plaintiff's intestate with a bill of the lumber of extra lengths needed for their stable building on the corner of Eighth and Walnut streets; that said lumber was not in stock and had to be sawed to order; that thereupon said Deardorff, at said Neiswaangers' request, made inquiries of various parties at different points as to the price at which said lumber could be furnished; that said Deardorff received a proposition from Schulenberg & Boeckler to saw and furnish said lumber within a certain time and at a certain price, by letter dated St. Louis, October 6, 1879; that said letter was shown to defendants, Neiswaanger, on October 7, 1879, the day of its receipt; that afterwards upon the same day, said Neiswaangers directed said Deardorff to order said lumber on said letter; that said lumber was accordingly ordered of said Schulenberg & Boeckler by said Deardorff; that the prices charged by said Deardorff to said Neiswaangers therefor were the invoice prices of said lumber in St. Louis, with freight to Kansas City and drayage added, and one dollar per thousand to said Deardorff for his profit or charge for handling said lumber; that said prices were according to the letter and offer of Schulenburg & Boeckler; that said lumber was actually used in the construction of the building of said Neiswaangers on lots 65 and 66, and the north two feet of lot 64, in Ross & Scarritt's addition to the City of Kansas, county of Jackson and state of Missouri; that a lien therefor was filed in the manner provided by law within six months after the account for said lumber accrued, and that suit thereon was brought in ninety days thereafter; that the delay in the delivery of said lumber, if any, was caused without fault on the part of said Deardorff; that Deardoff is dead, and plaintiff is his administrator, duly appointed and qualified--then plaintiff is entitled to recover against defendants the value of said lumber at the building, not to exceed the amount claimed in the petition, with interest at six per cent. from the date the lien was filed, and have a lien therefor enforced against the property hereinbefore described, unless the court shall find that said Deardorff made a special contract with defendants, Neiswaangers, to furnish said lumber by the 15th day of October, 1879, and that he did not so furnish the same; and, if the court shall find that such special contract was made, and that Deardorff failed to perform same by such delivery, the defendants, under the pleadings in this case, are entitled to recovery from the plaintiff and have credit for only nominal damages for such failure to deliver such lumber by said Deardorff."
The defendants then made requests for declarations of law, declaring, in effect, that if the plaintiff contracted to furnish this lumber for the construction of the livery stable in question at the particular time as claimed by defendants, that he failed to so deliver the same, and in consequence thereof the defendants sustained the damage set up in their answer, the court should allow the same. The court refused to so declare the law, and found the issues for the plaintiff, and gave him judgment for the full amount of his claim with six per cent. interest from date of filing the account for the lien. Defendants have brought the case here by appeal.
KARNES & ESS, for the appellants.
I. Deardorff sold and agreed to deliver this lumber to be used in the construction of this building. This is set up in the answer. In the affidavit to the mechanic's lien Deardorff, plaintiff's intestate, swore it was furnished to be used and was used in the construction of this building. All the evidence shows without contradiction that it was in contemplation of Deardorff and Neiswaangers that this lumber was to be used in the building of this livery stable.
II. The contract was for these long timbers for a specific purpose. Deardorff agreed to deliver this lumber at a certain time, and by his agreement he is bound. Dermot v. Jones, 2 Wall. (U. S.) page 1. Davis, Admr., v. Smith, 15 Mo. 469, et seq.; Ruff v. Rinaldo, 55 N.Y. 664; Singer v. Farnsworth, 2 Ind. 597; Brown v. Foster, 51 Pa.St. 174; Beaton v. Fay, 64 Ill. 417; Clark v. Moore, 3 Mich. 62, is not in point.
III. There was in this case a special contract. Deardorff did not perform it according to its terms. By the general rules of law a plaintiff cannot recover on a contract he has not performed, and if there is a special contract not performed by him he cannot abandon the special contract and sue on a quantum meruit or quantum valebant. This rule is relaxed only in cases of contracts like the one in suit here, and then he can recover only on the basis of allowing damages, and if damages exceed the contract price he gets nothing. 7 Greenleaf (Me.) 38; 33 Vt. 38; 6 N.H. 48; 29 Mo. 99; 23 Mo. 229.
IV. Deardorff knew of the particular...
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