Steinkamper v. McManus

• Decision Date: 03 May 1887
• Citation: 26 Mo.App. 51
• Parties: FREDERICK STEINKAMPER, Appellant, v. CAMILLA S. MCMANUS ET AL., Respondents.
• Court: Missouri Court of Appeals

26 Mo.App. 51

FREDERICK STEINKAMPER, Appellant, v. CAMILLA S. MCMANUS ET AL., Respondents.

Court of Appeals of Missouri, St. Louis.

May 3, 1887

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Affirmed.

MUENCH & CLINE, for the appellant: The unexplained use of technical words in an instruction is misleading, and is ground for a reversal of the judgment. Clarke v Kitchen, 52 Mo. 316; Carson v. Porter, 22 Mo.App. 179.

JOHN D DAVIS, for the respondents: The technical legal meaning of the word being not essentially different from its meaning in common use, its use is not reversible error. Berry v Wilson, 64 Mo. 164.

OPINION

ROMBAUER J.

This is an action upon a mechanic's lien, by a material man against the alleged sub-contractor, and the owner of the premises. It is well settled in this state that no recovery can be had charging the premises with a lien in such cases, except as an incident to a personal judgment against some one with whom the contract for the work or material was made, and who himself is either the owner, or standing with the owner, or some contractor under him, in a contract relation, and then only when the work or material actually entered into the construction of the building or improvement. Wibbing v. Powers, 25 Mo. 599; Simmons v. Carrier, 60 Mo. 581.

The plaintiff is a brick maker, and claims that he made the contract for the delivery of the brick with the defendant, David Goss, a brick layer, and sub-contractor for the brick work on the building sought to be charged, and that the brick furnished by him were all used in the construction of the building. The defendants claim that the plaintiff made the contract for furnishing the brick with one Fenton Goss, the defendant's brother, who, at that time, was the substantial owner of the capital stock, and sole manager of the Champion Brick Company, a corporation engaged in the manufacture of brick, and that only part of the brick furnished entered into the construction of the building. There was substantial testimony tending to establish the claim advanced by both parties, and the jury, in finding for the defendants, found that the defendants' version of the transaction was the true one.

The plaintiff, appealing, assigns for errors: (1) That the court admitted illegal testimony. (2) That the court misdirected the jury. (3) That the court erred in keeping the jury together for an unreasonable length of time, to the plaintiff's prejudice.

Touching the first complaint, we find that the greater part of the objections made by the plaintiff to the admission of evidence was in general terms, such as " plaintiff objects," without stating the specific grounds of objection. That objections thus made will not be reviewed on appeal has been established too long, by a series of uniform adjudications in this state, to need the citation of authorities in support of the proposition.

The ruling of the court on the admission of testimony, however, was substantially correct. That there was a contract between the defendant, David Goss, and Fenton Goss, or the Champion Brick Company, by which the latter agreed to deliver all the brick required for the erection of the building, appeared by such portion of the deposition of Fenton Goss as was read without objection. That fact further appeared, from the testimony of David Goss, received without objection. The mere fact that some oral evidence of the contents of a written contract was permitted to go to the jury, without sufficiently accounting for the absence of the written instrument, was of no particular importance, because the material inquiry was, whether there was such a contract, and not what its exact and specific details were. The main fact had been sufficiently established by testimony aliunde, received without objection.

In regard to the fact whether David Goss settled for these brick with the Champion Brick Company, or his brother, prior to the institution of this suit, the record reads as follows:

" Testimony of David Goss.

Q. Will you state with whom you settled for these brick that were received for this building?

Objected to by the plaintiff's counsel. Objection overruled.

A. I settled with the Champion Brick Company for all the brick that was delivered to the Locust street job."

This is one of the objections, which, even if otherwise well taken can not be reviewed here, because not sufficiently specific. But the objection was not well taken on other grounds. The controversy was, with whom the plaintiff's contract was made. The plaintiff, himself, admitted that the order for the brick was given by Fenton, and not by David Goss, and sought to charge the defendants on the presumption of a contract between himself and David Goss, arising from the fact of the receipt of the brick by David Goss. As it was competent for the plaintiff to show all circumstances tending to show that Fenton, in ordering the brick, acted as agent for David, so it was competent for the defendants to show...