Weber v. Collins
| Decision Date | 08 June 1897 |
| Citation | 41 S.W. 249,139 Mo. 501 |
| Parties | Weber et al. v. Collins et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.
Affirmed.
Collins & Jamison for appellants.
(1) The referee admitted illegal and incompetent evidence against the objections of the defendants. Carthage Marble Co. v Bauman, 44 Mo.App. 386. (2) There is no evidence tending to show that the defendant, M. R. Collins, Jr., was a party to the contract and it was error, therefore, to render judgment against him. Carthage Marble Co. v. Bauman, 44 Mo.App. 386; Squires v. Fithian's Adm'r, 27 Mo. 134; Bridwell v. Clark, 39 Mo. 170. (3) The judgment is excessive, and the referee erred in not charging plaintiffs for more delay in finishing the building. (4) It was error to render judgment against both defendants. (5) The court erred in not sustaining defendants' motion to make reply more definite and certain. (6) The court erred in referring this case to a referee without the consent of defendants.
Lubke & Muench for respondent.
(1) The defendant, Monroe R. Collins, Jr., was properly held to be a party to the contract between plaintiffs and his wife. If he was a "real party in interest," an undisclosed principal, then his liability is precisely the same as if his name had been signed to the contract, and this, whether plaintiff had or had not cause to suspect that said Collins was also a principal. Nichols v. Kern, 32 Mo.App. 1; Story on Agency, sec. 270; Higgins v. Dellinger, 22 Mo. 400; Briggs v. Munchon, 56 Mo. 467. (2) Thus this question became merely one of fact, as to which the referee's finding, equivalent to a special finding, is conclusive, if supported by any legal proof. Lingenfelder v. Wainwright, 103 Mo. 578; Wiggins Ferry Co. v Railroad, 73 Mo. 389. The referee's finding is well supported by the evidence. (3) As to damages for delay in completing the house, we contend that appellants were treated by the referee with quite sufficient liberality. There was no proof whatever as to the rental value of the building. The amount fixed in the contract is a mere penalty. It is doubtful, therefore, that appellants were entitled to more than nominal damages. Railroad v. Cochran, 113 Mo. 359. (4) The evidence of a general strike is quite ample. The language of the contract must mean a "general strike" in the locality where the work is to be performed, not a strike throughout the entire country.
The suit is by plaintiffs, as contractors, against Clara S. Collins, Monroe R. Collins, husband of the said Clara, and Robert E. Collins, upon a balance of an account for building a dwelling house, and to establish and enforce a mechanic's lien upon the land and building for the contract price.
The petition charges, in substance, that plaintiffs furnished the materials and constructed a dwelling house, on Lindell avenue in the city of St. Louis, under a contract with defendant Clara S. Collins, in behalf of herself and her husband and codefendant, Monroe R. Collins. The contract price was $ 11,369.52 and extras to the amount of $ 69, making a total of $ 11,438.52. Credits for $ 8,000, are admitted, leaving an alleged balance due of $ 3,438.52.
The petition further charges that at the time of making the contract the title to the land, upon which the building was constructed, was vested in Esther Collins, the mother of the said defendant, Monroe R. Collins, who had agreed to give the lot to her daughter-in-law, the said Clara, for a home, and that she did put her and her husband in possession thereof for the purpose of constructing the building. That said Esther Collins thereafter died leaving the legal title in defendants, her sons, Monroe R. Collins and Robert E. Collins. General judgment is also asked against the said defendants Clara S. and Monroe R. Collins.
The answers of Monroe R. and Robert S. Collins were general denials. The answer of defendant Clara S. Collins, in addition to a general denial set up that the building was constructed under a special contract, which required its completion by the fifteenth of September, 1892, and provided for a forfeiture of $ 5 per day for delays, unless for causes specified. That the building was not completed until April 15, 1893, making two hundred and two days' delay, amounting to $ 1,010, which she asked to have deducted from the contract price. The reply admitted the delay but claimed they were unavoidable from and for causes excepted under the contract.
The case went to a referee, who stated the account as follows:
Unpaid balance of contract price
$ 3,369.52
Extra
5.00
$ 3,374.52
Less balance on account of delay
372.00
The referee found that plaintiffs were not entitled to a mechanic's lien, but that the contract for the improvement was made in the name of Clara S. Collins for herself, and as agent for her husband, and recommended a general judgment against them both for the amount found to be due. Exceptions to the report were filed and overruled and judgment was rendered in accordance therewith. From the judgment the defendants alone appeal.
The finding of the referee being against the mechanic's lien and plaintiff not appealing, that issue, which was the most important one tried, is not for consideration on this appeal.
Defendants assigned but two errors. First, it having been shown that the house was delivered two hundred and two days after the date fixed by the contract for its completion, plaintiff did not show adequate cause for the delay allowed them by the referee. Second, Monroe R. Collins is not shown to be personally liable to plaintiff upon the contract made by his wife, Clara S. Collins.
Both these propositions challenge the correctness of the finding of facts by the referee. It is well settled, under the decisions of this court, that the finding of the referee on questions of fact, in cases in which the parties are entitled to jury trial, stands as a special verdict of a jury, and where there is substantial evidence to sustain it, the appellate courts will presume that the "whole evidence was properly weighed and the requisite effect given it. The Wiggins Ferry Co. v. Railroad, 73 Mo. 389; Hardware Co. v. Wolter, 91 Mo. 484, 3 S.W. 865; Howard Co. v. Baker, 119 Mo. 397, 24 S.W. 200.
The contract provided that the time for completion of the building should be extended if plaintiff was unavoidably delayed in its construction by any "general strike," or by "inclement weather." Plaintiff, by reply to defendant's counterclaim, confessed the delay of two hundred and two days, but alleged that it was caused by general strikes and by inclement weather. Evidence was introduced by plaintiff tending to prove that the delay was unavoidable on account of the causes so specified in the contract. It was shown that the operatives of the planing mills in the city of St. Louis were on a strike from June 15, to August 8, 1892. There were twenty-eight of such mills and only three of them were in operation and they were unable to secure skilled labor. By reason of this strike plaintiffs were unable to have the necessary material for the building prepared.
Defendant's counsel insists that this was not a "general strike" within the meaning of the contract. The referee thought differently, and we quite agree with him. Mill work, such as was required to be done for the construction of this building, could only be prepared under special orders, and some considerable time was required to fill them. It could not have been contemplated by the parties that such material would be prepared by foreign mills when so many were in operation in the city. Indeed plaintiffs had already contracted with the Crescent Planing Mills for the preparation of most of the materials before the strike commenced. The strike of the operatives in the mills in St. Louis was general and I am of the opinion that the strike was general within the contemplation of the parties to the contract.
There was also substantial evidence tending to prove delays caused by...
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Fuchs v. Leahy
...or property may be sued for it on the original consideration, as the undisclosed principal. Higgins v. Dellinger, 22 Mo. 397; Weber v. Collins, 139 Mo. 501; v. Stone Co., 169 Mo. 243; Manse v. McGuire, 52 Mo.App. 150; Nichols v. Kern, 32 Mo.App. 6; Donner v. White-cotton, 201 Mo.App. 443. T......