Taussig v. Wind

• Decision Date: 03 February 1903
• Citation: 71 S.W. 1095,98 Mo. App. 129
• Parties: TAUSSIG v. WIND.
• Court: Missouri Court of Appeals

71 S.W. 1095

98 Mo. App. 129

TAUSSIG v. WIND.

Court of Appeals at St. Louis, Missouri.

February 3, 1903.

BUILDING CONTRACT—DEFECTIVE PLASTERING—PLEADING—INSTRUCTIONS—ISSUES—HARMLESS ERROR.

1. A verdict supported by substantial evidence is conclusive on appeal.

2. Where, in an action by an owner of a building against the contractor for damages caused by the falling of the plaster, the only allegations of the petition were that the material furnished was not good, and that the work was not performed in a workmanlike manner, plaintiff was not entitled to recover if the falling of the plaster was caused by the too rapid drying, even though the drying was occasioned by defendant's failure to properly close the doors and windows.

3. In an action for the breach of a written contract, no recovery can be had for the breach of any implied warranty arising out of the contract.

4. In an action by the owner of a building against the contractor who erected it for damages alleged to have been caused by the contractor's failing to use proper materials in plastering, or to do the work in a workmanlike manner, the admission of evidence that defendant was not notified when the plaster fell off, nor requested to perform the work of repairing, was harmless, where the instructions directed the attention of the jury only to the specific issues presented by the pleadings.

Appeal from St. Louis circuit court.

Action by William Taussig against Anton Wind. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an action brought upon a building contract of date May 5, 1899, whereby defendant agreed to erect for plaintiff, under the supervision of the architect of the latter, two detached brick dwelling houses in the city of St. Louis. The contract recites, among other provisions, the following:

"Article 1. The contractor, under the direction and to the satisfaction of Theo. Link, architect, acting for the purposes of this contract as the agent of the owner, shall and will provide all materials and perform all the work mentioned in the specifications and shown on the drawings prepared by said architect."

"Art. 10. It is further mutually agreed between the parties hereto that no certificate given or payment made under this contract, except a final certificate or payment, shall be conclusive evidence of the performance of this contract, either wholly or in part, and that no payment shall be construed to be acceptance of defective work or improper materials."

The specifications of the buildings erected provided in detail for the plastering work, as follows:

"Plasterer. All stud partitions and ceilings in each first, second, and attic story, including stair soffits, shall be lathed with seasoned white pine laths, in a proper manner, breaking joint. All the above lathed work and the inside face of the brick walls in first, second, and attic stories shall be plastered with lime mortar, with two-coat work, to a smooth trowel finish."

The petition alleged that plaintiff performed the contract on his part, making payment to defendant of the contract price, but that defendant violated the contract, assigning as breaches the following: That the material furnished by defendant for plastering the buildings was not good and first-class material, but was inferior, defective, and insufficient in quality, and that the defendant did not do the plastering in a good, skillful, and workmanlike manner, and that by reason of the defective, inferior, and insufficient materials used by defendant in plastering the buildings, and the unskillful and unworkmanlike manner in which the plastering was done, the buildings became dangerous and unsafe as dwellings, and the plastering gave way. The answer admitted the execution of the contract, and that defendant was thereby required to plaster the houses and furnish the material therefor, but denied that, by the terms of the contract, defendant was required to perform the plastering in the manner alleged; and for affirmative defense the answer further set forth that defendant fully performed the contract, and, upon the completion of the houses, plaintiff, by his superintendent and agent, gave a final certificate to the effect that the work required to be done by defendant under the contract had been fully performed according to its terms, and that final payment was then made by plaintiff to defendant for the erection of the houses, which were then accepted by plaintiff with full knowledge of the kind of material used and the manner in which the work was done in plastering the houses, and that whatever defects, if any existed, either in the material used or in the workmanship of plastering the houses, were then and there waived by plaintiff. In reply, plaintiff denied the affirmative matter of defendant's answer.

The evidence tended to show that in December, 1899, the houses were completed, and plaintiff's architect issued to defendant a final certificate of the completion of the contract, and plaintiff made final payment thereon to defendant of the balance of the contract price. In January, 1901, the plastering in both houses began to crumble and fall, and it became dangerous to occupy them; and, to render them tenantable, both houses...