Stewart v. St. Louis & Suburban Ry. Co.

• Decision Date: 02 May 1911
• Citation: 137 S.W. 46,157 Mo.App. 225
• Parties: ALEXANDER M. STEWART et al., Appellants, v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Respondent
• Court: Missouri Court of Appeals

137 S.W. 46

157 Mo.App. 225

ALEXANDER M. STEWART et al., Appellants, v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

May 2, 1911

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Argued and Submitted April 3, 1911

Appeal from St. Louis City Circuit Court.--Hon. George H. Williams Judge.

AFFIRMED AND REMANDED.

STATEMENT.--Plaintiffs by their petition, after averring the character of the parties, "for their cause of action aver that at the instance and request of defendant, they furnished during the year 1904 and 1905, certain labor and material for the doing of certain alterations and additions to defendant's premises situated at DeHodiamont, in the city of St. Louis and state of Missouri, the particulars of which will appear by an 'Account A,' herewith filed, and that the total amount of the labor and material so furnished by plaintiffs was of the fair and reasonable value of $ 46,159.05; that the defendant furnished to plaintiffs certain material and did certain work and made certain payments on account, for which defendant is entitled to a credit of $ 41,551.43, a balance due and unpaid of $ 4607.62, the particulars of all of which will appear by account 'A' herewith filed; that thereafter, to-wit, on the 18th day of September, 1905, plaintiffs and defendant had an accounting as to all work and labor furnished and done, as set forth in said account 'A,' and as to all payments and credits to which defendant was entitled upon said accounting, and that then and there a balance was struck between plaintiffs and defendant, and it was then and there agreed that there was still due and unpaid to plaintiffs on account of said labor and material, the sum of $ 4607.62, and then and there said sum of $ 4607.62 became an account stated between plaintiffs and said defendant in regard to all the matters set forth in said account 'A' and the said defendant then and there agreed to pay plaintiffs said balance within a reasonable time, but defendant has wholly failed and neglected to pay said balance or any part thereof. Wherefore plaintiffs demand judgment against said defendant," in the sum named with interest thereon since September 18, 1905, and for costs. Attached to the petition is the account referred to as Exhibit "A," consisting of many items, debit and credit, the last credit item being dated September 18, 1905, a cash credit of $ 2500.

The answer is a general denial.

A trial was had before the court and a jury, plaintiffs' evidence consisting of the account attached to the petition and oral testimony of Mr. Lohmann, manager for plaintiffs, and of Mr. Taylor, attorney for plaintiffs.

Mr. Lohmann testified that the work under the contract which plaintiffs had with defendant was completed sometime prior to September 18, 1905; that after it was completed he attended a meeting, at which meeting were present the witness and Mr. Taylor, the attorney for plaintiffs, and Mr. Walsh, representing defendant, together with Mr. Chandler, one of defendant's attorneys, and the original of the account Exhibit "A" was taken up, the original being the same as Exhibit "A," except that the credit of $ 2500 cash, credited September 18th, had not then been entered on the account. Mr. Lohmann testified that they had the meeting to make a demand for the payment of the money due them or to file a mechanic's lien on the property, and he also testified that the amount stated as the balance was correct. Asked what the representatives of defendant said at that meeting, he answered, "They refused to pay the account on account of a clause in the contract. . . . Their reason for refusing to pay the account was--their claiming that we were responsible for the accident, in accordance with a clause in the contract." He further testified that at that meeting they did not go over the items because that had been done at prior meetings with their engineer, with Mr. Walsh and others, Mr. Walsh being the vice-president or manager of defendant. At the prior meetings the balance struck was $ 7101.62, in accordance with the statement submitted at that meeting, and was correct and there was no objection to it. The witness continued: "After the conference--at the conference, rather, it was agreed to make us a payment on account of $ 2500, which amount we were to have deducted from the original statement submitted, leaving a balance of $ 4607.62." On cross-examination, Mr. Lohmann was asked if at that meeting Mr. Chandler, one of the attorneys for defendant, and Mr. Walsh, representing defendant, had not absolutely refused to pay anything because they said that plaintiffs were not living up to their contract on account of an injury to an employee sustained at the buildings. Witness answered: "I said they refused to pay us on account of a clause in the contract concerning accidents; yes." Asked if they (defendant's representatives) had not not said that they refused to pay this amount stated here (in the account), witness answered, "They did not dispute the amount but refused to pay it." That they had refused to pay it on the ground that they had a contract with defendant under which plaintiffs had assumed all the risk of accident which might occur of somebody getting hurt as the result of their operations and for any judgments arising in the construction of the coal bins and other improvements on the property. Asked by counsel, "So they continually refused to pay this claim on that ground," witness answered: "But they did pay us $ 2500 after that meeting, on account." Witness was then asked, "And at the same time, while they refused to pay you any part of this money--the defendant refused to pay you any part of this money on the grounds I have stated, at the same time they paid you $ 2500?" To which he answered, "Exactly. Their first position was that they refused to pay us anything on account, but after discussing the matter awhile, they agreed to pay us $ 2500, which they did pay us on account." Asked if they had ever agreed to pay the $ 4607 balance, witness answered, "They never refused to pay us." Asked if they did not refuse to pay it, witness answered, "That end was left open until--." Witness was again asked if he meant to say that at that meeting defendant agreed to pay plaintiffs $ 2500. He answered, "Yes, sir." We quote the remainder of his testimony under cross-examination as set out in the abstract.

"Q. But said that they would refuse to pay the $ 4607, because they agreed that the bond that you had given in the case would meet their requirements in case they were held liable for the demands of this man Clark (the man who had been injured), for the balance of the damage? A. We never made any agreement about that man or the balance of damage.

Q. Or the balance of damage? A. No, sir.

Q. But they did refuse to pay the $ 4600? A. At that time they did; yes, sir; that is true.

Q. At that time they refused to pay the $ 4600? A. Yes, sir; and they refused to do so, refused to pay it ever since then.

Q. And have refused to pay it ever since? A. Yes, sir.

Q. Now, there can't be any mistake about that? A. There can't be any mistake about that."

Mr Taylor, examined on part of plaintiffs, testified that acting as attorney for plaintiffs, he went to the office of Mr. Chandler, one of the attorneys for defendant, on two occasions. On one of these occasions, Mr. Pierce, another of the attorneys for defendant, was also present, along with Mr. Chandler and himself. Asked what was said and done at these meetings, Mr. Taylor answered that the items of debit and credit were all gone over and "a bit later" plaintiffs agreed to accept the $ 2500. It was stated by Mr. Chandler and by Mr. Pierce that the amount of the items was not in dispute but both these gentlemen contended at the time that they ought not pay this sum, the balance claimed on the account, on the ground of a clause which was contained in the building contract between plaintiffs and defendant in regard to plaintiffs assuming certain risks. Witness contended in these meetings that that clause had no application to the injuries that had happened to Clark, stating why he thought so. The representatives of defendant contended to the contrary. They had quite a discussion along that line and the matter was left open. At the time of the meeting, the time had nearly expired for filing a mechanic's lien and plaintiffs were threatening to file one and advised defendant's representatives of their intention to do that. Within a day or two after this first meeting witness and Mr. Lohmann, representing plaintiffs, and Mr. Chandler and Mr. Walsh, the latter representing defendant as its general manager, met at Mr. Chandler's office. Mr. Taylor, the witness, asked particularly whether there was any objection to the items of the account. Mr. Walsh said, "No;" that the items were all right, "and the only excuse we have for not paying it is that we think it oughtn't to be paid until the matter of Clark's suit was settled." Mr. Taylor said in response to this that this was no excuse for not paying the amount, because under his view there was no liability on the part of his client for negligence in the matter of the claim of Clark. Finally Mr. Walsh proposed to pay $ 2500 on the account and not have them file the mechanic's lien. Thereupon he did pay the $ 2500, leaving the balance of $ 4607.62. To quote Mr. Taylor: "It is true that Mr. Walsh said there and then that he didn't think he ought to pay anything on the $ 7107.62 until the Clark matter was disposed of; . . . that the Union Iron & Foundry Company was to share a part of the sum necessary to make a settlement with Mr. Clark, and that the Suburban Railway Company was to share or contribute a sum to settle...