Stewart v. Goodrich

• Decision Date: 25 May 1880
• Citation: 9 Mo.App. 125
• Parties: JAMES STEWART, Respondent, v. HENRY O. GOODRICH, Appellant.
• Court: Missouri Court of Appeals

9 Mo.App. 125

JAMES STEWART, Respondent,

v.HENRY O. GOODRICH, Appellant.

St. Louis Court of Appeals, Missouri.

May 25, 1880.

1. Where the petition alleges a contract as the cause of action, and the answer is a general denial, it is competent to show that the contract was conditional, and that the condition was not fulfilled.

2. Where evidence is admitted without objection, as if competent under a general denial, or as if specially pleaded, proper instructions based upon the issues thus tried are improperly refused.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Reversed and remanded.

HARRIS & JOY, for the appellant: The evidence was properly admitted under the pleadings, and the instructions based thereon should have been given.-- Corby v. Weddle, 57 Mo. 452; Schermerhorn v. Van Allen, 18 Barb. 29; Greenway v. James, 34 Mo. 327.

J. M. & C. H. KRUM and W. B. DOUGLAS, for the respondent: Under a general denial, only such questions of fact can be tried as are raised by the contradiction of the material allegations of the plaintiff's petition.-- Northrup v. Insurance Co., 47 Mo. 435; Benedict v. Seymour, 6 How. Pr. 298. It is no error for a trial court to refuse instructions not based upon issues made by the pleadings.-- Moffat v. Conklin, 35 Mo. 453; Budd v. Hoffheimer, 52 Mo. 297; Parker v. Marquis, 62 Mo. 38, 42.BAKEWELL, J., delivered the opinion of the court.

The petition alleges that plaintiff is an architect, and that at the request of defendant he prepared designs and specifications for ten houses, the reasonable value of which services was $350. The answer is a general denial. On the trial, plaintiff introduced evidence tending to prove the allegations of the petition, and defendant introduced evidence tending to show that the agreement between plaintiff and defendant was, that the plaintiff was to be paid a percentage on the cost of erecting the houses, if they were built; that it was understood at the time that the houses might not be built; that in case the houses were not built, defendant was to pay nothing for the plans and specifications; and that owing to circumstances detailed in the evidence, defendant abandoned his design of building, and the houses were not put up. Defendant asked an instruction to the effect that if the jury believed from the evidence that plaintiff agreed with defendant that he would make the plans and specifications, and require no compensation therefor unless the houses were built, and that the houses were never built, then they should find for defendant. This instruction was refused. There was a verdict and judgment for plaintiff.

Respondent contends that the evidence as to the agreement that there should be no charge if the houses were not built should have been specially pleaded; and that it was not competent under the general denial. The defence set up, however, is not the determination by subsequent occurrences of a once subsisting cause of action; but it is denied that any cause of action ever came into being under the terms of the agreement as set forth by their evidence. The defence was not new matter, and need not be specially pleaded, but was properly introduced, we think, under a general denial....