Thomas v. Bambrick Bros. Const. Co.

• Decision Date: 06 April 1915
• Docket Number: No. 13897.,13897.
• Citation: 189 Mo. App. 623,175 S.W. 258
• Parties: THOMAS v. BAMBRICK BROS. CONST. CO.
• Court: Missouri Court of Appeals

175 S.W. 258

189 Mo. A. 623

THOMAS v. BAMBRICK BROS. CONST. CO.

No. 13897.

St. Louis Court of Appeals, Missouri.

April 6, 1915.

Appeal from St. Louis Circuit Court; Eugene McQuillan, judge.

Action by L. A. Thomas against the Bambrick Brothers Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

T. J. Rowe, Thomas J. Rowe, Jr., and Henry Rowe, all of St. Louis, for appellant. Claud D. Hall and Sheridan Webster, both of St. Louis, for respondent.

ALLEN, J.

On November 27, 1905, plaintiff made a written proposal to defendant corporation to strip and remove the clay from defendant's quarry in the city of St. Louis at the price of 20 cents per cubic yard, which proposal was accepted by defendant corporation by its written acceptance affixed thereto. Because of the nature of the assignments of error before us, the contents of the writing need not be fully stated. The petition pleads the substance of the contract sued upon, to which is added, as a separate paragraph' of the petition, the following allegation, viz.:

"It was further agreed by and between the parties that the number of cubic yards of clay to be removed was 30,000 cubic yards."

The petition then avers that plaintiff duly entered upon the performance of the contract, and removed 6,862 cubic yards of clay, in accordance therewith, for which he was entitled to receive $1,372.40; that defendant had paid plaintiff the sum of $997.39, leaving a balance due plaintiff of $375.01 for clay actually removed by him under the terms of the contract. It is then alleged that on the ____ day of February, 1906, defendant, without cause, wrongfully prevented plaintiff from continuing under the contract and terminated the same, though plaintiff had duly performed on his part and was ready, willing, and able to continue the work under the contract; that had plaintiff been permitted to so continue he would have removed in all the sum of 30,000 cubic yards of clay; and that upon the clay which he had not removed he would have made a net profit of 6 cents per cubic yard, or a total of $1,388.88. Judgment is therefore prayed for $1,763.89, the sum of the two above-mentioned items. The answer is a general denial. The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff for $1,000, from which defendant prosecutes this appeal.

It is unnecessary to here review the evidence adduced at the trial. It is sufficient to say that there was abundant testimony In plaintiffs behalf tending to establish the cause of action pleaded in his petition, and to sustain the verdict and judgment.

Aside from some criticism of one instruction, which does not warrant discussion, the assignments of error have to do with the effect of the allegation above quoted from the petition, viz., that it was agreed between the parties that there was originally 30,000 cubic yards of clay to be removed. The written contract did not contain such a provision, and it is urged that the court erred in admitting it in evidence, over defendant's objections, upon the ground that it was not the contract...