Watkins v. Trs. of the Richmond Coll.

• Decision Date: 31 August 1867
• Citation: 41 Mo. 302
• Parties: HENRIETTA WATKINS, Adm'x of Estate of JAMES R. ALLEN, deceased, Defendant in Error, v. THE TRUSTEES OF THE RICHMOND COLLEGE, Plaintiffs in Error.
• Court: Missouri Supreme Court

41 Mo. 302

HENRIETTA WATKINS, Adm'x of Estate of JAMES R. ALLEN, deceased, Defendant in Error,

v.THE TRUSTEES OF THE RICHMOND COLLEGE, Plaintiffs in Error.

Supreme Court of Missouri.

August Term, 1867.

Error to Fifth District Court.

The cause was submitted to the court without a jury. The plaintiff oved the court to declare the law as follows:

1. If, from the evidence given to the court in this case sitting as a jury, the court should find that James R. Allen, the plaintiff's intestate, did have the college building completed for defendants, and did pay and lay out the amount of money in plaintiff's petition mentioned for that purpose, and that, during the carrying on of the work necessary to the completion of said building, the said defendants were fully apprised thereof, and knowingly permitted the said James R. Allen to go on and complete said college building without interfering to prevent him from so doing, and after the completion thereof the defendants used said building for educational purposes, although said Allen may have commenced the work without the order of the defendants and without any express contract in relation to the work, yet the law raises an implied promise on the part of the defendants to pay the value of such services.

2. If the court find from the evidence the facts to be as hypothecated in the first instruction above as a legal inference drawn from the circumstances of the case, a promise to pay may be implied, as also may a request to do such work be implied.

3. In this case, the plaintiff avers in his petition that he did have the college building completed for defendants; defendants' answer does not deny this specific and positive fact; it is therefore admitted. By the pleadings it is also admitted that it was the duty of the defendants to have the college building completed: this is averred by plaintiff and not denied by defendants. The performance and fulfilment by the plaintiff's intestate of a duty incumbent on the defendants to be performed, and which performance was accepted afterwards by defendants. Then if, from the evidence and admissions by the pleadings in this case, the court should find that the performance of the aforesaid duty was beneficial to defendants and expensive to plaintiff's intestate, the law raises an implied request by defendant's, and an implied promise to pay for services attending such performance if the defendants had knowledge of the fact of plaintiff's intestate being engaged in performing such duty so incumbent on defendants, and the court will find for the plaintiff.

4. From the admissions of the parties by the pleadings in this case, especially when such admissions are corroborated by the testimony in the case, the plaintiff is entitled to recover.

The court refused to give said instructions, and the plaintiff excepted.

The defendants asked the following declarations of law, which the court also refused to give:

1. That unless the defendants requested James R. Allen, the original plaintiff, to do the work on the college building specified in the amended petition, or promised to pay him for said work, the finding must be for the defendants.

2. If the work specified in the amended petition was done by James R. Allen, the original plaintiff, voluntarily, without any request from defendants to do the work and without any promise by the defendants to pay him for the work, the finding must be for the defendants.

3. The original plaintiff could not make himself the creditor of the defendants by doing work on the college building without any contract express or implied with the defendants.

The court, of its own motion, gave the following instructions:--

1. If it appear to the court sitting as a jury, from the evidence, that there was a contract subsisting between the deceased, James R. Allen, and defendants; and if it further appear from the evidence that, in pursuance of said contract, said deceased put valuable improvements upon the Richmond College building, the finding should be for the plaintiff in the value of such improvements. A contract may be either express or implied; and if it appear to the court sitting as a jury, from the evidence, that deceased put valuable improvements upon the college building, and that defendants knew that said improvements were being made, an implied contract on the part of the defendants to pay for the improvements is raised by the proof of such knowledge, and the finding should be for the plaintiff if there is no affirmative proof that the deceased undertook and performed the improvements as a gift or upon other considerations than those arising upon contract.

2. If it appear to the court sitting as a jury, from the evidence, that deceased made valuable improvements upon the Richmond College building, and that there was no contract express or implied between deceased and the defendants touching said improvements, then such improvements should be treated as a gift from deceased to the college. If it appear that defendants bona fide refused to contract with deceased respecting said improvements, but that nevertheless deceased made the improvements upon other considerations than those arising upon the contract, then, as concerning these defendants, the improvements should be treated as a gift, and the finding should be for the defendants.

3. If it appear to the court sitting as a jury, from the evidence, that defendants refused to contract with deceased respecting improvements on the college building, and it further appears from the evidence that nevertheless the deceased, James R. Allen, put valuable improvements upon said college building with the expectation that he would be reimbursed by public contribution after that he (deceased) had completed the improvements, and had thereby placed defendants in condition to enforce a contract for the endowment of the college, then such improvements must be treated as a gift, so far as the defendants are concerned, and the finding must be for defendants.

4. By the pleadings in this case, this is an action upon contract to hold defendants upon a promise express or implied to pay for certain valuable improvements stated to have been made upon the Richmond College building, and this is not an action of any other form.

To the giving of said instructions the plaintiff excepted.

Hall & Oliver, for plaintiff in error.

I. The court committed no error in refusing instructions asked by plaintiff. They ignore the defence set up by the answer and sustained by the evidence-- Sawyer v. Han. & St. Jo. R. R. Co., 37 Mo. 240.

II. The instructions given by the court were at least as favorable to plaintiff as the law is--Coleman v. Roberts, 1 Mo. 68; Morris v. Barnes, 35 Mo. 412.

The plaintiff had no right to make defendants his debtors against their will. His completion of the college building was voluntary and without any contracts on the part of defendants, express or implied--Whiting v. Sullivan, 7 Mass. 108; Jewett v. Stewart. 1 Me. 117; Lynch v. Bogy, 19 Mo. 171; 2 Greenl. Ev. § 107; Allen v. Mulledy, 21 Ills. 76.

H. M. & A. H. Vories, for defendants in error.

A gift is never implied or made out by a doubtful inference, but it must be proven to have been fully executed, and each of the parties must have so understood it and have assented thereto--2 Kent. 588; 1 Pars. Cont. 234.

The evidence in this case shows no such mutual understanding or assent of the parties. There must have been a complete executed gift at the time. A mere promise to give or that one expects to give or donate a thing, is no gift; but, on the contrary, rebuts the fact that a gift has been made--Huntington v. Gilmore, 14 Barb. 243; Hunter v. Hunter, 19 Barb. 637; 7 Coms. 261.

FAGG, Judge, delivered the opinion of the court.

It is shown by the record that this suit was instituted in the Ray Circuit Court, to recover a sum of money alleged to have been advanced by James R. Allen in his lifetime, for the completion of the college edifice at the city of Richmond. A trial was had before the...