St. Louis Bridge & Iron Company v. St. Louis Brewing Association

• Decision Date: 18 June 1895
• Parties: St. Louis Bridge & Iron Company, Appellant, v. St. Louis Brewing Association
• Court: Missouri Supreme Court

31 S.W. 765

129 Mo. 343

St. Louis Bridge & Iron Company, Appellant, v. St. Louis Brewing Association

Supreme Court of Missouri, Second Division

June 18, 1895

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.

Affirmed.

S. S Merrill and E. J. O'Brien for appellant.

(1) The court properly overruled the motion for a nonsuit and declarations of law numbers 1 and 5 of the defendant, whereby the defendant claimed a right under the terms of the contract in evidence to terminate the contract at its own volition. Defendant can not violate a contract, and then to avoid liability assert it abrogated it. Murray v. Kansas City, 47 Mo.App. 105. (2) The court erred in refusing the plaintiff's declaration of law number 1, that the question of waiver could not be considered, and in giving an instruction of its own motion, that if it appears by the evidence that plaintiff acquiesced in a change of plans dispensing with pile driving, then plaintiff is not entitled to recover for omitted pile driving. The question of waiver or acquiescence by knowledge or contract after performance thereof was begun in any change or in abrogation of the contract, is not involved in the case, no such issue being presented by the pleadings, nor was any such theory claimed or urged by the defendant as is shown by his instructions. First. "The issues can not be changed by an instruction; they must abide the pleading." Glass v. Gelvin, 80 Mo. 297; Moffatt v. Conklin, 35 Mo. 453; Wade v. Hardy, 75 Mo. 394; Jacquin v. Cable Co., 57 Mo.App. 320; Riggins v. Railroad, 73 Mo. 598; Whipple v. Ass'n, 55 Mo.App. 554; Stones v. Richmond, 21 Mo.App. 17. Second. "It is unnecessary to notice the evidence; for, conceding that it was sufficient to warrant the finding, it is manifest that the finding was not made on the issues raised by the pleadings." Irwin v. Chiles, 28 Mo. 576. Third. "The defendant, by merely answering the allegation in the plaintiff's petition, can try only such questions of fact as are necessary to sustain the plaintiff's case. If he intends to rely upon new matter, which goes to defeat or avoid the plaintiff's action, he must set forth in clear and precise terms each substantive fact intended to be so relied on." Northrup v. Ins. Co., 47 Mo. 435. (3) The court erred in finding against the plaintiff as to the second breach alleged, on the ground that plaintiff had by his conduct assented to dispensing with pile driving. We claim there was no such evidence. The evidence is reviewed in our printed argument.

Kehr & Tittmann for respondent.

(1) As to the second breach alleged in the petition, the contract is executory. The plaintiff, therefore, must sue on the contract, and is bound by its terms. (2) By the contract the plaintiff engaged to furnish such "piling" as the defendant "required." The defendant did not obligate itself to take any specific quantity of piling, but only such as in its opinion was required; that is, was necessary for the work in hand. The word "required" is construed in the following cases: Directors v. May, L. R., 7 H. of L. Cas. 292; Whitehouse v. Liverpool, etc., Co., 5 C. B. 798; Errington v. Railroad, 51 L. J. Ch. 313; 19 Ch. D. 559. (3) The contract itself reserved power to the superintending architects to reject the whole or any part of the material or work called for by the contract, and gave them power to make any deviation from or alteration in the plan or execution of the work, and made their decision on all matters involved in the contract binding and conclusive on the plaintiff. Availing themselves of the power thus reserved, the architects, after discovering that piling was unnecessary, dispensed with it, and altered the plan of the work in that particular. The court held that they had the right to do this, and tried the case on that theory. (4) Appellant's contract of January 8, 1891, and its bid of January 10, 1891, were offered and received in evidence only to show that plaintiff had notice of the change in the plan of the work and of the decision of the architects in that respect. It was not offered or received as tending to show a waiver of the contract on the part of the plaintiff or as an act of estoppel. (5) Appellant's assumption that the case was tried upon the theory of a waiver of the contract or an estoppel is unauthorized and a misconception of the record. And the numerous authorities which it cites to show that such defense should have been pleaded are inapplicable, because the record presents no such question. The point which appellant makes, arises upon an instruction given by the court on its own motion. But the instruction is not referred to or complained of in the motion for new trial, and, therefore, is not open to review here. State v. Nelson, 101 Mo. 477; Haynes v. Trenton, 108 Mo. 123; Wilson v. Taylor, 119 Mo. 627. (6) All the evidence from which the waiver or estoppel, complained of by appellant, may be deduced, was introduced without objection and was even invited by appellant. No exception is taken to it in the motion for new trial. Plaintiff, moreover, asked an instruction on the subject of waiver and estoppel, which the court gave. If the pleadings are not broad enough to cover the issue, the objection was waived by the appellant, and can not be assigned as error here. Davis v. Brown, 67 Mo. 313; McGonigle v. Dougherty, 71 Mo. 259; Holmes v. Braidwood, 82 Mo. 610-616; Smith v. Culligan, 74 Mo. 387; Bank v. Armstrong, 62 Mo. 59; Crutchfield v. Railroad, 64 Mo. 255; Bettes v. Magoon, 85 Mo. 580; Thorpe v. Railroad, 89 Mo. 651; Hilz v. Railroad, 101 Mo. 36; Harper v. Morse, 114 Mo. 317; Johnson v. Bank, 116 Mo. 558. (7) The judgment below is manifestly right upon the law and the facts, and should be affirmed. Fitzgerald v. Barker, 96 Mo. 661; Fortune v. Fife, 105 Mo. 433; Bushey v. Glenn, 107 Mo. 331; Wolff v. Campbell, 110 Mo. 114; Williams v. Mitchell, 112 Mo. 300.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

On the sixteenth of December, 1890, the appellant, the St. Louis Bridge & Iron Company, entered into a written agreement with the respondent, by which it agreed to do all the excavation and piling required for the new Excelsior Brewery, in accordance with the specifications furnished by the superintending architects and adopted for said work.

At the time the contract was made, it was believed that the site on which the brewery building was to be erected consisted of made or filled ground. The specifications, among other things, require sounding piles to be driven at least twelve different points in the premises wherever directed. The excavation contemplated by the contract, was the excavation of the trenches for the walls of the building. The sounding piles were to be driven before the trenches were dug, and all other piles required were to be driven in the trenches. Appellant was to be paid a lump sum for the excavation, and fifty cents per cubic yard for all additional excavation required. For the piling it was to be paid twenty-two and one half cents per lineal foot. Neither the contract nor the specifications indicate the number of piles to be driven.

E. Jungenfeld & Company were the superintending architects, and F. Widmann, a member of the firm, was in charge of the work. H. W. Sebastian was the president, treasurer and manager of the Bridge & Iron Company, and represented it in this transaction. To all intents and purposes he was the plaintiff. He drove fifteen sounding piles at such points in the premises as Widmann indicated. Widmann says when the last pile was driven, he asked Sebastian, "How do they drive?" He answered, "They are driving awfully hard, Mr. Widmann, and I think that it is not necessary to drive piles in such a good soil." Immediately after the sounding piles were driven, plaintiff began to excavate the trenches. They were dug somewhat deeper than first contemplated, and Widmann, furthermore, had a hole dug at the lowest point in the premises, as an additional means of determining the character of the soil. At about twelve feet below the surface good yellow clay was found. It was then apparent that it would be useless to drive piles.

In designing the building before work was begun, and under the belief that the site consisted of made or filled ground, a plan was prepared showing dots within the lines of the trenches. These dots indicate the piles which, it was expected, would have to be driven. Upon discovering that the top filling only was of made ground, and that at about twelve feet below the surface the soil consisted of good yellow clay, the superintending architects determined that no further piling was required, and in lieu of piling, concluded to widen and deepen the trenches down to the bed of clay, and to put concrete, instead of piling, in the trenches; and to carry out that idea a new plan was prepared, indicating the change. Plaintiff was notified that no further piling would be required, and was given the contract to do the additional excavation necessary to widen and deepen the trenches. This contract is dated January 8, 1891, and two days later plaintiff submitted a bid for all the concrete and masonry work required by the new plan.

It appeared from the testimony that piles for the foundation of buildings are driven only where the buildings are put up on alluvial, swampy or made ground. Mr. Sebastian himself testified that clay is a good foundation for buildings; that piles in such soils are unnecessary and never driven. He admits that he was notified by the architects on the first of March, 1891, that they had dispensed with the piling, but claims not to have been so informed before that day. He sent his draughtsman to the office of the architects on the ninth or tenth of January, 1891. This...