Walsh v. St. Louis Exposition & Music Hall Ass'n

• Decision Date: 17 November 1890
• Citation: 14 S.W. 722,101 Mo. 534
• Parties: Walsh, Appellant, v. St. Louis Exposition and Music Hall Association
• Court: Missouri Supreme Court

14 S.W. 722

101 Mo. 534

Walsh, Appellant, v. St. Louis Exposition and Music Hall Association

Supreme Court of Missouri

November 17, 1890

Appeal from St. Louis City Circuit Court. -- Hon. G. W. Lubke Judge.

Affirmed.

W. E Fisse and Alexander Martin for appellant.

(1) The only substantial defense pleaded is "that after plaintiff submitted his plans, designs, etc., to defendant plaintiff, with the assent of defendant, waived and abandoned any claim or right of plaintiff to become the architect and superintendent of said building, under or by virtue of the terms of the resolutions aforesaid." Waiver and abandonment are questions of intention, and are to be determined from a consideration of all the facts and circumstances surrounding the transaction. Ehrlich v. Ins. Co., 88 Mo. 249; Chouteau v. Iron Works, 88 Mo. 73; 94 Mo. 388; Boynton v. Bradley, 54 Vt. 92; West v. Platt, 127 Mass. 367; Thompson on Trials, sec. 1440. The offer of guaranty about the cost of the building was not intended by Mr. Walsh as a waiver of his right to have his plans declared the most meritorious designs in the contest, and it was not received or regarded by the board in the light of a waiver or abandonment. (2) There was no evidence to show such waiver at a period before defendant had voted on the comparative merits of the plans presented. (3) There was no waiver or abandonment by the plaintiff of his rights under the resolutions, after his plans had been in fact declared the most meritorious of all those submitted in the competition, and he had been selected as architect. (4) Instruction number 6, asked by plaintiff and refused, was a proper instruction, and should have been given. Boland v. Railroad, 36 Mo. 484, and other cases cited in argument, infra. (5) The court committed error in admitting the testimony offered by defendant, and respecting the tender of five hundred dollars to the plaintiff. The letter was hearsay; the testimony was irrelevant; and the tender was insufficient. Berthold v. Reyburn, 37 Mo. 586. (6) The court gave improper instructions asked by defendant. The instruction numbered 3, asked by plaintiff and modified by the court, should have been given as requested. Chouteau v. Iron Works, 83 Mo. 73. (7) The instructions given by the court concerning the elements constituting waiver and abandonment, viz., number 3 for plaintiff and number 10 for defendant, put this proposition to the jury less strongly than plaintiff was entitled to have it stated; and this weakness of statement, when contrasted with the positive language used in defendant's other instructions, respecting particular acts alleged by defendant to constitute a waiver, made the charge altogether one-sided, unfair and highly prejudicial to the plaintiff. (8) Instructions numbered 5 and 8, asked by plaintiff, should have been given. The plaintiff was entitled to have the contract of employment construed by the court. Chouteau v. Iron Works, 83 Mo. 73. The construction of the contract as contained in these instructions was evidently proper.

Boyle, Adams & McKeighan and Silas B. Jones for respondent.

(1) None of the propositions submitted by appellant in his behalf in his brief can be maintained. Appellant's plans were never declared the most meritorious. (2) The judgment should not be reversed on account of any alleged errors in the instructions. First. If under the evidence the judgment is for the right party, it will not be disturbed by this court for any errors, which may have occurred at the trial. Noble v. Blount, 77 Mo. 235; Galbreath v. Moberly, 80 Mo. 484; Methudy v. Ross, 81 Mo. 482. Second. Instructions given to the jury are to be taken and read together; and even if the instructions given are faulty the case will not be reversed, unless it is clear that the jury was misled. Owens v. Railroad, 95 Mo. 181; McCarthy v. Railroad, 92 Mo. 536. Third. The appellant cannot complain of error in the instructions given at the request of respondent, if the same error occurs in those given to the jury at the request of appellant. McGonigle v. Daugherty, 71 Mo. 259; Thorpe v. Railroad, 89 Mo. 650 (666); Holmes v. Braidwood, 82 Mo. 610. Fourth. While the trial issues must be within the paper issues, they may be less. Hornblower v. Crandall, 7 Mo.App. 220; S. C., 78 Mo. 581. Fifth. The construction of a written instrument is a matter of law for the court, and must not be left to the jury as a question of fact. State v. Lafaivre, 53 Mo. 470; Edwards v. Smith, 63 Mo. 119; Fruin v. Railroad, 89 Mo. 397. Sixth. When the facts are undisputed or clear, the court should apply the law and determine the case. Powell v. Powell, 23 Mo.App. 365. Seventh. When an act is relied upon to show an abandonment by one party to a contract, it is proper for the court to declare whether such act constitutes an abandonment. Chouteau v. Iron Works, 83 Mo. 73. Eighth. An instruction is not objectionable because it tells the jury that the effect of a fact established in the evidence is not what is claimed for it. Chouteau v. Iron Works, 83 Mo. 73. (3) The letters complained of were properly admitted in evidence; their improper admission could not have prejudiced plaintiff. (4) The contention of appellant that the tender of five hundred dollars by check was not good is, under the evidence, not well taken. Berthold v. Reyburn, 37 Mo. 586.

Black J. Barclay, J., not sitting.

OPINION

Black, J.

-- The defendant corporation, having in contemplation the erection of a building for exposition and music hall purposes, adopted, and on the nineteenth of April, 1883, sent to the plaintiff and to other architects, a copy of the following resolutions:

"First. That all architects, residents of this city, and five non-residents, be invited to prepare and submit designs.

"Second. That, from those presented by residents, seven, which shall be considered the most meritorious, shall be accepted and awarded five hundred dollars ($ 500) each, and the five presented by non-residents shall each be awarded the same amount. All designs for which you pay five hundred dollars ($ 500) shall be the property of the association.

"Third. That it be understood that any foreign architect may submit a design, but, if not accepted as the most meritorious of all, he will receive no compensation, and his design shall be returned.

"Fourth. The architect who is successful shall not receive the five hundred dollars ($ 500), but he shall be engaged as architect and superintendent, and shall be paid, for performing such duties, the usual commissions as adopted by the American Institute and the St. Louis Institute of Architects."

The fifth, sixth and seventh resolutions provide when the plans shall be delivered to the secretary; that they shall be without names or marks to indicate by whom made; and the scale to which they shall be drawn, with descriptive specifications.

The eighth is as follows: "The said designs and specifications shall be for a building to cost not over four hundred thousand dollars ($ 400,000) exclusive of power, electricity and elevator machinery, arrangements for which, however, must be made."

Others go on to recommend architects to include in their designs the following features: The building to cover not more than four hundred and eighty by three hundred and twenty feet, to have within it a music hall to seat four thousand persons, and a small hall to seat twelve hundred persons, and to have a basement, fine art rooms, a floral hall, etc.

Pursuant to these resolutions the plaintiff, a resident architect of St. Louis, submitted in the proposed competition two sets of plans, one called "Dignus Laudie A," and the other "Dignus Laudie B," and a number of other architects, both resident and non-resident, submitted one set of plans each. It is alleged in the petition, among other things, that defendant's board of directors gave to one of plaintiff's plans the award of highest merit, that he thereby became the successful architect within the meaning of said resolutions, so that defendant became bound to employ him as architect and superintendent at the specified compensation; but that defendant made breach of its agreement to the plaintiff's damage in the sum of twenty thousand dollars, and for which sum he prays judgment. These averments are denied, and the answer then states that, after plaintiff submitted his plans, he, with the consent of the defendant, waived and abandoned any claim or right to become the architect and superintendent of the building under and by virtue of said resolutions; all of which is denied by the reply. These issues were submitted to a jury, and were found for the defendant, and plaintiff appealed.

A contention made in this court by the plaintiff is that defendant, by its plea of waiver and abandonment, admits that a right had accrued to him to become architect and superintendent of the building. As to this it is sufficient to say no such a question was raised in the trial court. The case was there tried on both issues of fact, and that, too, without objection. It is too late to make the question for the first time in this court.

The plaintiff insists that the evidence is conclusive to the effect that an award of greatest merit was given to his plans, so that any contrary finding by the jury should be set aside; and that there is no evidence to support the plea of waiver and abandonment. As the briefs devote much space to a discussion of these questions, it becomes necessary to set out a condensed history of the case made by the evidence.

On the ninth of July, 1883, the defendant's board of directors proceeded to select seven plans presented by resident architects, entitled to the award of five hundred dollars each. This having been done the board had before it nine plans...