Usona Mfg. Co. v. Shubert-Christy Corporation

• Decision Date: 07 November 1939
• Docket Number: No. 25182.,25182.
• Citation: 132 S.W.2d 1101
• Parties: USONA MFG. CO. v. SHUBERT-CHRISTY CORPORATION.
• Court: Missouri Court of Appeals

132 S.W.2d 1101

USONA MFG. CO. v. SHUBERT-CHRISTY CORPORATION.

No. 25182.

St. Louis Court of Appeals. Missouri.

November 7, 1939.

Appeal from Circuit Court, St. Louis County; Peter T. Barrett, Judge.

"Not to be reported in State Reports."

Suit on express contract for cadmium plating of machine and carriage bolts and other pieces of iron by the Usona Manufacturing Company against the Shubert Christy Corporation. The suit was instituted before a justice of the peace where a trial was had and the case reached the circuit court on appeal where a verdict was given for the plaintiff. From an order granting defendant's motion for a new trial, the plaintiff appeals.

Order affirmed and cause remanded.

Charles F. Ballak, of St. Louis, for appellant.

Harry S. Gleick, of St. Louis, for respondent.

HUGHES, Presiding Judge.

This suit was instituted before a justice of the peace in St. Louis County by plaintiff filing with the justice a petition as follows:

"Plaintiff states:

"That it and defendant were at the times herein mentioned and still are corporations.

"That in March and April 1937, in The City of St. Louis, Missouri, plaintiff cadmium plated certain machine bolts, carriage bolts, iron angles, L clips and other bolts and pieces of iron at defendant's special instance and request and upon the orders of defendant, an itemized account of said work being as follows, to wit:

                March 16, 1937 — To cadmium plating
                179 pounds of Machine and
                Carriage bolts at 5 cents per
                pound and cadmium plating 112
                pounds of Angles at 5 cents per
                pound ....................................    $ 14.55
                March 26, 1937 — To cadmium plating
                2558 pounds of Machine and
                Carriage bolts at 5 cents per
                pound ....................................     177.90
                April 16, 1937 — To cadmium plating
                250 L clips weighing 875
                pounds at 5 cents per pound ..............      43.75
                April 16, 1937 — To cadmium plating
                200 Machine bolts weighing
                200 pounds at 5 cents per pound...........      10.00
                April 16, 1937 — To cadmium plating
                300 bolts weighing 135
                pounds at 5 cents per pound...............       6.75
                                                              _______
                      Total ..............................    $252.95
                    Credits ..............................    None
                       Total due .........................    $252.95
                

"That the account for said sum of $252.95 accrued and became due and payable from defendant to plaintiff on May 1, 1937, and on May 1, 1937 after said account accrued and repeatedly since plaintiff duly demanded payment of defendant of said sum of $252.95 but defendant has failed to pay said sum of $252.95 or any part thereof and said sum of $252.95 is still due plaintiff from defendant together with interest thereon at the rate of six per cent per annum since plaintiff duly demanded payment of defendant as aforesaid.

"Wherefore plaintiff asks judgment against defendant for $252.95 together with interest thereon at the rate of six per cent per annum since plaintiff duly demanded payment of defendant as aforesaid."

Defendant filed answer as follows:

"Comes now the defendant herein, and for its answer and counterclaim to plaintiff's petition admits that plaintiff and defendant were at the time in said petition mentioned and in this answer and counterclaim, corporations duly organized according to law.

"Defendant further alleges that from approximately the first of March, 1936, until on or about November 2, 1936, plaintiff undertook to double-cadmium plate for defendant 12,278 lbs. of nuts, bolts, washers, angle irons, pipe clamps, and similar items, and charged the defendant 3¢ per 1b. therefor; that from November 3, 1936, to on or about April 15, 1937, plaintiff undertook to double-cadmium plate an additional 4,722 lbs. thereof and charged 5¢ per lb. for doing so.

"Defendant further alleges that the total amount thus charged by plaintiff to defendant therefor was $604.44, of which all but the amount set forth in plaintiff's petition has been paid.

"Defendant further alleges that the work done by plaintiff upon said materials was not double-cadmium plating, but was cadmium plating of a very inferior quality; that the purpose of cadmium plating is to prevent rust, that plaintiff's cadmium plating was so inferior as not to prevent rust, that the work done by plaintiff was practically worthless, will cause defendant a great deal of expense, that as to the extent it had any value at all, the value of said work does not exceed 1¢ a 1b. for the entire period, that accordingly defendant is not obligated to plaintiff upon plaintiff's cause of action, but on the other hand has a counterclaim against plaintiff for damages by reason of said inferior cadmium plating, and that defendant is entitled to recover against plaintiff in excess of $300.00, the limit of this Court's jurisdiction.

"Wherefore, defendant prays for a judgment on defendant's cause of action and for a judgment against plaintiff on defendant's counterclaim in the amount of $300.00, and for costs."

A trial in the justice court was had and the case reached the circuit court on appeal where a trial was had before a jury and the verdict given for plaintiff for $270.65. Defendant's motion for a new trial was sustained by the trial court and the case reaches here on appeal by plaintiff from the order granting defendant a new trial.

Two days' time was consumed in the trial of the case and a mass of testimony, most of which was utterly irrelevant to the issues, makes up the record of the case.

Although formal pleadings are not required in a justice's court, yet if plaintiff elects to plead in strictness in the justice's court he is bound by his pleading. Lyman v. Dale, 262 Mo. 353, 171 S.W. 352. And, likewise where the defendant files an answer he is bound by it. Gentner v. Johnson, Mo.App., 270 S.W. 442; Cindrick v. Scott, 226 Mo.App. 153, 42 S.W.2d 957; Strong v. Turner, Mo.App., 122 S.W.2d 71.

Both plaintiff and defendant filed formal pleadings and from the pleadings we must ascertain what the issues are. First, the petition: Plaintiff sues on an express contract, to wit, that at the special instance and request of defendant certain services were rendered for a certain consideration. Plaintiff had the choice of standing on his express contract, or, of waiving the express contract and suing upon a quantum meruit for work and labor done or services rendered. Having chosen his route by way of an express contract he must recover on that theory and that alone if he recovers at all. Reifschneider v. Beck, 148 Mo.App. 725, 735, 129 S.W. 232; Roll v. Inglish, 220 Mo.App. 1077, 279 S.W. 769; Shoemaker v. Johnson, 200 Mo.App. 209, 204 S.W....