Wright v. Sanderson

• Decision Date: 08 February 1886
• Citation: 20 Mo.App. 534
• Parties: CHARLES WRIGHT, Respondent, v. SANDERSON & SIMS, Appellants.
• Court: Kansas Court of Appeals

20 Mo.App. 534

CHARLES WRIGHT, Respondent, v. SANDERSON & SIMS, Appellants.

Court of Appeals of Missouri, Kansas City.

February 8, 1886

APPEAL from the Randolph Circuit Court, HON. G. H. BURCKHARTT Judge.

Reversed and remanded.

Statement of case by the court.

The petition in this case avers that the defendants, as partners in consideration of a certain sum to be paid by plaintiff agreed " to do all the brick and stone work in building the foundation and walls in a certain dwelling house plaintiff was erecting on Franklin street, in the city of Moberly, Mo.," obligating themselves to furnish all material used in doing said work. The petition states that the defendants agreed to do said work in a good, workmanlike manner, and to furnish, in the construction and building of said foundation and walls, good, first class material. The petition alleges that the plaintiff performed the contract on his part, and paid to the defendants the amount agreed upon and then alleges a failure on the part of defendants to perform the contract on their part, in this: " That the materials furnished by the defendants in the building and construction of said foundation and walls were not good and first class materials, but were inferior in quality and insufficient in quantity; " and also in this: " That defendants did not do the work on said foundation and walls, in a good and workmanlike manner; and plaintiff states that by reason of the defective, inferior, and insufficient material used by defendants in building said foundation and walls, and the unskilful and unworkmanlike manner in which said foundation and walls were built, said foundation and walls gave away, and became dangerous and unsafe for a dwelling, and useless to plaintiff as such, and plaintiff was compelled to pay large sums of money in order to place said building in a safe condition, and render it habitable and useful as a dwelling." The petition also alleges: " That, by reason of the unskilful and unworkmanlike manner in which said foundation and walls were built, and the defective, inferior and insufficient material put in the same, the building cracked, settled, and the walls thereof separated, thereby injuring the wood work and plastering in the building, and plaintiff was compelled to spend large sums of money in repairing said wood work and plastering." The petition further states as follows: " Plaintiff states, that by reason of the premises aforesaid, he was compelled, in order to make said dwelling safe, useful, and habitable, as a dwelling, and to put the same in the condition that it should have been put under the terms of said contract, and by reason of defendants' failure to comply with their contract, as aforesaid, he was compelled to spend the following sums of money," etc. For which said sums judgment is asked.

The answer is a general denial of all the allegations of the petition, except such as are admitted by the answer. The answer then admits that the defendants " did furnish the material and build a house for plaintiff." The answer then specially denies the other allegations of the petition.

The evidence was conflicting. The evidence for plaintiff tended to establish the allegations of the petition. The evidence for the defendants tended to contradict those allegations, and to prove that the damage to the building was caused, and that the expenditure of the sums of money, for the recovery of which this action was brought, were made necessary by the defective plan of the wall as to its depth in the ground, and also by the character of the ground upon which the foundation wall rested, the said ground being so soft as to permit the wall to sink into it.

During the trial the plaintiff announced that he abandoned all right to recover for any defect in the brick work, and would be limited, in his recovery, to the foundation, which was of stone.

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

" If the jury believe, from the evidence, that defendants contracted to build for plaintiff a foundation and cellar wall of good material, and in a workmanlike manner, and defendants failed to build said foundation and cellar wall according to contract, and plaintiff was damaged in consequence of such failure, they will find for plaintiff the amount of such damage; but if the jury believe defendants complied with their contract in building the foundation and cellar wall, they will find for defendants."

" If the jury find for plaintiff, the measure of damages is the amount that it would cost to make the foundation and cellar wall of the size, and as good as the contract required."

For the defendants the court gave the following instruction:

" 3. If the jury believe from the evidence that said building was damaged from sinking, in consequence of the ground at the bottom of the foundation being so soft and unfit for the support of a foundation used in such a house, then defendants are not liable in this action, provided the jury further find that said foundation and walls were built according to contract."

The court refused to give for the defendants the following instructions:

" 1. If the jury believe from the evidence that there was a contract between the plaintiff in this cause and the defendants, in which defendants were to build a brick house for plaintiff, according to certain plans and specifications set out in such contract, and further find that defendants built said house as specified in said contract, and in a good and workmanlike manner, and furnished good material to be used in said house, then plaintiff cannot recover in this action, and the jury must find for the defendants."

" 2. Although the jury may believe the foundation and cellar walls were not built exactly according to contract, yet if the jury further believe that said failure was not the cause of the building giving away, but that owing to the defective plan of the wall as to its depth in the ground, the wall would have given away anyhow, then the verdict must be for defendants."

W. A. MARTIN, for the appellants.

I. The two instructions given by the court, of its own motion, are in conflict. By the first they could find any amount plaintiff might expend in repairing his house, while on the latter (second) they were limited to what it would take to make a wall, which was partly made, come up to a certain standard. Henschen v. O'Bannon, 56 Mo. 289; Road Co. v. Renfroe, 58 Mo. 265; Goetz v. Railroad, 50 Mo. 472. Besides, the second of these is as to an issue not raised by the pleadings, and on which there is no evidence. It is, therefore, bad in itself. Thomps. Charg. Jury, 87; Snider v. Exp. Co., 63 Mo. 376; College v. Tyler, 35 Mo. 268: Camps v. Hulen, 43 Mo. 591.

II. Defendants' second instruction should have been given. It makes no difference whether the work was done according to the contract or not, if the damages sued for were the result of some other cause, and not the defective performance; or, if the implicit compliance with the contract by defendants would not have prevented it. If the defendants failed to perform the work as per contract, and the wall gave way, but not on account of the defective work, but because of a defective plan, then there is no liability in this action. Clark v. Hannell, 27 Mo. 55; Sawyer v Railroad, 37 Mo. 241; Budd v. Hoff heimer, 52 Mo. 297; Ellis...