Sundmacher v. Lloyd

• Decision Date: 23 February 1909
• Citation: 135 Mo. App. 517,116 S.W. 12
• Parties: SUNDMACHER et al. v. LLOYD.
• Court: Missouri Court of Appeals

116 S.W. 12

135 Mo. App. 517

SUNDMACHER et al. v. LLOYD.

St. Louis Court of Appeals. Missouri.

February 23, 1909.

1. PLEADING (§ 176) — REPLY — SUFFICIENCY.

A reply denying allegations of new matter in an answer and counterclaim without pointing out what the allegations are is faulty.

2. PLEADING (§ 426) — WAIVER OF ERROR. ERROR — PLEADING.

By going to trial on the merits, defendant waived any error in overruling his motion to strike the reply and for judgment on the pleadings.

3. PLEADING (§ 349) — ANSWER — CONSTRUCTION.

An answer alleging that defendant paid all sums arising from plaintiffs' claim for excavating below grade lines for walks was no plea of payment of plaintiffs' demand, so as to entitle defendant to judgment on the pleadings on the theory that the reply was so defective as to constitute no denial of the plea; the plea being an ambiguous statement which might be interpreted to mean that defendant had paid the whole of plaintiffs' claim or had paid such sum as plaintiffs had earned.

4. CONTRACTS (§ 303) — EXCAVATIONS — ACTION FOR COMPENSATION — EVIDENCE.

In a suit for money due under a contract for excavating, wherein defendant counterclaimed for plaintiffs' failure to perform the work according to the specifications, plaintiffs could show that in the course of the work defendant notified their representative to omit compliance with the specifications in certain respects.

5. CONTRACTS (§ 319) — EXCAVATIONS — RIGHT TO COMPENSATION — DISREGARD OF SPECIFICATIONS.

Plaintiffs can recover for excavating if they performed their contract according to defendant's direction, though they omitted to comply with part of the specifications.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Action by H. Sundmacher and another against Hiram Lloyd. From a judgment for plaintiffs, defendant appeals. Affirmed.

H. A. & C. R. Hamilton, for appellant. Rogers & Sachs, for respondents.

GOODE, J.

This case was considered in the decision reported in 114 Mo. App. 317, 89 S. W. 368. After the remand, an amended petition was filed, in which the plaintiffs alleged in the first count the making of a contract with defendant June 21, 1902, to do the excavating and grading for the William McKinley High School in the city of St. Louis, which defendant was to erect under contract with the board of education of said city; that plaintiffs agreed to do said excavating and grading according to the plans and specifications prepared for the board of education except the excavation below the grade lines for granitoid walks, and defendant agreed to pay plaintiffs for their work $6,000; that plaintiffs entered on the execution of the contract, and performed all of it according to the plans and specifications, except such part as was not required to be done, and defendant accepted their work as satisfactory and paid them $5,700, leaving a balance of $300 due, which he had refused to pay. In the second count another contract of date of October 10, 1903, is alleged, by which defendant employed plaintiffs to excavate below the grade lines for granitoid walks on the lot where the McKinley High School was to be erected; that plaintiffs entered on the performance of their contract for which defendant had agreed to pay $236.51, but after the work was done defendant refused to pay said sum or any part of it. To this petition defendant filed the same answer he had filed to the original petition, the substance of which is set out in the report of the first appeal, but we need to state it here. The first paragraph of the answer is a general denial of the statements in the first count of the petition. The second paragraph consists, firstly, of a general denial of the averments in the second count of the petition and every allegation and matter therein contained; and, secondly, of this averment: "Defendant says he has fully paid and discharged all sums arising out of the claim made by plaintiffs therein (i. e., in the second count of the petition) for excavating below the grade lines for granitoid walks around said Wm. McKinley High School." The third paragraph is a counterclaim for damages sustained by defendant in consequence of plaintiffs having failed to keep the two contracts declared on in the two counts of the petition. These contracts are admitted in the answer substantially as pleaded by plaintiffs, and it is averred plaintiffs entered on the performance and did some work, but abandoned them before completion, and defendant had to complete them at an expense of $572.50, for which judgment was asked. Defendant's answer was filed out of time and later than it should have been, and the record goes to show this circumstance prevented plaintiffs' counsel from filing a reply until the day of the trial, when one was filed denying each and every allegation of the new matter contained in the answer and counterclaim. Defendant moved to strike out the reply and for judgment for defendant on the two causes of action set up in the petition, and an interlocutory judgment in favor of defendant and against plaintiffs on the counterclaim. The reason assigned for this motion was failure of the reply to deny specifically or generally the facts and matter set forth in defendant's answer and counterclaim. The motion was overruled and an exception saved, and thereupon an application for a continuance was made by defendant. The...