Strother v. De Witt

• Decision Date: 02 February 1903
• Citation: 98 Mo. App. 293,71 S.W. 1129
• Court: Missouri Court of Appeals
• Parties: STROTHER v. DE WITT et al.<SMALL><SUP>*</SUP></SMALL>

71 S.W. 1129

98 Mo. App. 293

STROTHER v. DE WITT et al.^*

Court of Appeals at Kansas City, Missouri.

February 2, 1903.

WORK AND LABOR—IMPLIED CONTRACT—RECOVERY—BENEFICIAL INTEREST—INTENTION —ACCEPTANCE OF BENEFIT—INSTRUCTIONS.

1. Where an act done by one is beneficial to another, a subsequent assent of the beneficiary is sufficient evidence to authorize a finding of a previous request on his part.

2. Such assent may be inferred from knowledge of the beneficial act, or silent acquiescence therein.

3. Where one voluntarily does an act or renders service for another without any intention to charge therefor, or an understanding that the other shall pay, he cannot recover for his service.

4. Whether a beneficial act done or services rendered was intended as a gratuity or not is a question for the jury, under all the circumstances.

5. A petition alleged that plaintiff built a house on defendant's land, and that "at the time the house was erected" it was the intention of plaintiff and defendant that the latter should repay plaintiff for so doing. Held not error to instruct that the jury must find that defendant expected and knew he was to pay for the house when it was built, rather than at the time it was received, since such requirement conformed to the express allegations of the petition.

6. Where plaintiff sued for moneys expended in building a house on defendant's land, alleging that it was the intention that he should be repaid therefor, and the answer was a general denial, and defendant's counsel, during the trial, admitted that most of the money that went into the house was paid by plaintiff, such admission did not change the issues made by the pleadings, but only rendered it unnecessary for plaintiff, in making out his prima facie case, to offer proof of such admitted fact.

7. Where plaintiff sued to recover for moneys expended in building a house on defendant's land on an understanding that he should be repaid therefor, and the answer was a general denial, and there was no plea in the nature of a confession and avoidance, to the effect that the house was a gratuity, but evidence which would have properly been admissible only under such a plea went in without objection, and certain instructions of plaintiff's requested the submission of the issue on the theory that the defense pleaded was a confession and avoidance, plaintiff could not complain that it was error for the court to give defendant's instructions embodying a like theory.

8. An instruction that if plaintiff caused the house to be built, and defendants consented and took possession, the jury should find for plaintiff, unless they found that plaintiff had no intention to charge, "or that the defendants did not expect to be charged," was erroneous, for use of the disjunctive.

Appeal from circuit court, Jackson county; Edward P. Gates, Judge.

Action by John D. Strother, as administrator of the estate of Daniel Gattel, against J. Andrew De Witt and another. From a judgment for defendants, plaintiff appeals. Reversed.

J. Allen Prewitt, for appellant. Paxton & Rose, for respondents.

SMITH, P. J.

Action indebitatus assumpsit. The petition alleged that one Daniel Gattel, in his lifetime, at the special instance and request and for the use and benefit of defendants, built and erected upon their real estate a one and one-half story house, with other appurtenant improvements, of the value of $1,500, and that, at the time said dwelling house was erected and said improvements were made, it was the intention of the said Gattel and the defendants that the latter should repay said Gattel whatever amount he should lay out and expend in their behalf, and that the defendants did so receive the same; that said defendants refused to pay said Gattel, or the plaintiff, his administrator, the amount so laid out and expended, etc. The answer was a general denial. There was a trial, wherein the defendants had judgment, and plaintiff appealed.

The errors assigned for the reversal of the judgment relate mainly to the action of the trial court in giving and refusing instructions. The plaintiff insists that the first, second, and third instructions requested by him should have been given. The correctness in expression of the plaintiff's first and second may be well questioned, in view of the rulings of the supreme court in the case of Watkins v. Richmond College, 41 Mo. 302; but, if correct, it was not harmful error to refuse them, since his third, which the court, sua sponte, modified, and then gave, in its modified form, was similar in expression to his first and second. It instructed the jury that "if you find from the evidence that plaintiff's decedent, Daniel Gattel, built or erected, or caused to be built or erected at his own expense, a dwelling house or other improvements on land claimed by defendants, and that defendants consented to and accepted the same, and thereafter took possession of such dwelling house and other improvements, then you will find for plaintiff in such sum as you believe from the evidence said Gattel may have so paid out or expended, unless you further find by a preponderance of the testimony that said Gattel expended such money without any intention of charging therefor, or that the defendants did not expect to be charged therefor." This instruction, when taken in connection with the first and third given for the defendants, but for the error hereinafter noticed, correctly submitted the issue to the jury. The said third told the jury (1) "that, before you can find for the plaintiff, you must find from the evidence that at the time Daniel Gattel built the house in...