Turney v. Baker

• Decision Date: 07 December 1903
• Citation: 77 S.W. 479,103 Mo.App. 390
• Parties: ALBERT TURNEY, Respondent, v. ANDREW J. BAKER, Appellant
• Court: Kansas Court of Appeals

77 S.W. 479

103 Mo.App. 390

ALBERT TURNEY, Respondent, v. ANDREW J. BAKER, Appellant

Court of Appeals of Missouri, Kansas City

December 7, 1903

Appeal from Jackson Circuit Court.--Hon. E. P. Gates, Judge.

AFFIRMED.

Judgment affirmed.

Harkless O'Grady & Crysler for appellant.

(1) Instruction No. 4, given by the court at the instance of the plaintiff, which concluded by instructing the jury to find for the plaintiff upon the facts therein stated, and which wholly ignored the defense, was error. Carder v Primm, 60 Mo.App. 423; Linn v. Massillion, 78 Mo.App. 111; Orscheln v. Scott, 79 Mo.App. 534; Desnoyer v. Lisman, 85 Mo.App. 340. (2) The case was submitted to the jury under the instructions upon a theory which permitted the jury to wholly ignore the defense made by the defendant, and was an unfair and partial submitting of the issues. Clapper v. Mendall, 69 S.W. 669 not yet reported.

Brown Harding & Brown for respondent.

(1) Instruction No. 4 given on behalf of plaintiff was not error. The counterclaim was not set up as a defense to plaintiff's action, but was an independent action. There was no evidence to support the counterclaim. (2) Instruction No. 4 offered by defendant was properly refused, for three reasons: There was no evidence upon which to base the instruction. This instruction ignored and eliminated plaintiff's defense to the counterclaim. The instruction erroneously fixed the measure of damages. (3) As no complaint was made in appellant's motion for a new trial as to the verdict being excessive, he can not be heard to complain for the first time in this court. Watson v. Race, 46 Mo.App. 547. (4) Instruction No. 9 was proper. The fact that plaintiff did not complete the work on account of his wrongful discharge by defendant was no defense to his action on quantum meruit. (5) The court committed no error in permitting plaintiff to prove the "reasonable value" of his services. (6) There was no error committed by the court in admitting in evidence the conversation between Hall and Turner. (7) The hypothetical questions propounded to the jury were proper.

OPINION

SMITH, P. J.

The plaintiff in his petition alleged that he was an architect engaged in the practice of his profession and "that defendant employed him to assist in making a suitable selection and purchase of real estate in Kansas City on which to erect improvements and to inspect and examine buildings in said city and elsewhere to determine the character of the proposed buildings and to pay his expenses in so doing; to devise and prepare plans and specifications for such contemplated buildings and to superintend the construction thereof; that in pursuance of his employment by defendant as aforesaid, plaintiff inspected in company with defendant various tracts of land suitable for building sites in Kansas City, and elsewhere, and finally, by the advice and suggestion of plaintiff, defendant purchased a certain tract of ground at Sixteenth and Broadway in Kansas City, and that thereupon plaintiff in pursuance of his employment as aforesaid, and at the express direction of defendant, devised and prepared plans and specifications for the grading of the tract of ground so purchased and the construction of a stone wall around the same, and let the contracts therefor and plaintiff superintended at the instance of said defendant, and as a part of the employment as aforesaid, the work of grading said lot and the construction of said retaining wall. Plaintiff further states that at the special instance and request of defendant and as part of the employment aforesaid, plaintiff devised and prepared preliminary plans for the erection and construction of two buildings upon said described tract of ground, and that plaintiff gave defendant various and frequent consultations regarding the improvement of said land as aforesaid, and that plaintiff has ever since been ready and willing to complete said plans and specifications therefor and to superintend the construction of said buildings, but that defendant in violation of the terms of his employment of plaintiff as aforesaid, and in disregard of plaintiff's rights has terminated said employment and has refused to permit plaintiff to finish and complete said plans and specifications, and to superintend the erection and construction of the buildings thereunder. Plaintiff says that in the inspection and examination of buildings at the instance of defendant as aforesaid, he expended the sum of about $ 175. Plaintiff states that a reasonable value of the services performed by him as aforesaid for defendant, together with the money expended, is twenty-five hundred dollars," etc.

The answer contained a general denial which was followed by an allegation to the effect that, "defendant admits that he employed the plaintiff to draw plans for and superintend the construction of a stone retaining wall mentioned in plaintiff's petition. That plaintiff undertook to do so, but so negligently and carelessly constructed said retaining wall, or caused the same to be constructed, as that the retaining wall aforesaid was so constructed as to project over on to the property of adjoining property owners, and other portions of said wall were so constructed as not to come out to the edge of defendant's line of property. That by reason of such negligence and carelessness on the part of the plaintiff, defendant has been damaged in the sum of two thousand, one hundred and sixty-eight dollars, for which, with his costs, he asks judgment over against the plaintiff."

The replication of plaintiff denied that he was guilty of any negligence or carelessness in the construction of said retaining wall, and denied that any portion of said wall was or is constructed so as to project over defendant's lot on to other property, "but plaintiff says that said wall was constructed out of rough face stone and some points of which extended out further than others. Plaintiff admits that the base of a certain post erected at the southwest corner of said wall, projects over the line of defendant's lot some one to five inches, but says that said projections are largely occasioned by the projecting points of said rough stone. Plaintiff alleges that defendant knew of the position and projection of said stone while said stone was being erected, and that he consented and ordered the said post erected as it now stands, and that he has sustained no damage thereby."

We have thus set forth the pleadings in extenso so that one of the grounds upon which defendant seeks a reversal of the judgment may be fully understood.

The defendant objects that the plaintiff...