242 Mo. 201 | Mo. | 1912
This action was brought in the circuit court of the city of St. Louis, to recover the value of materials furnished and labor done by the plaintiffs at the instance and request of the defendants and used in the construction of certain buildings on the World’s Pair Grounds in said city, in the year 1904. Plaintiffs were partners, engaged in the business of furnishing the materials and doing the labor in certain kinds of construction work on the buildings then in course of erection at the said fair grounds. The defendant Irish Exhibit Company was a corporation and owned and conducted the Irish Village exhibit at the said fair. The defendants Hendley and Casey were owners of stock and managers of said corporation. The defendants Caldwell & Drake were contractors and erected the buildings of the said Irish Village, under contract with the said Irish Exhibit Company.
The petition alleged that the plaintiffs, at the special instance and request of the defendants, furnished materials and paid for the labor done, as per account filed, of the value and price of $12,044; that the prices so charged were reasonable and that the defendants promised and agreed to pay for the same, but, though
There was testimony tending to prove the following facts:
Appellants had entered into a written contract with the Irish Exhibit Company by which they were to “furnish all labor and material of every kind necessary for the construction and completion of your buildings and improvements of whatsoever kind, to be erected on the Pike, World’s Pair Grounds, St. Louis, Missouri, for ten per cent of the total cost of the same, you to pay all bills for labor and material.” Respondents entered into two separate.contracts in writing with appellants for the furnishing of material and labor on the buildings described therein. Those contracts were performed and respondents were paid by appellants in accordance with the terms thereof. During the performance of said two contracts certain buildings and improvements not contemplated in the original contract between appellants and the Irish Exhibit Company, called extras, were agreed upon, and the work and labor sued for in this action were furnished by respondents to appellants in the construction ef this additional work, without any written contract therefor, but upon the request and orders'
I. Complaint is made by appellants that the referee erred in admitting, over defendants’ objection, certain books of account which were not original entries, but were aggregates entered at a later date from other memoranda. The only exception to the report, under which this alleged error was saved, if at'all, is the eighth, to-wit: “Because in the hearing before the referee said referee admitted, over the objection of these defendants, illegal, irrelevant and incompetent evidence offered by plaintiffs.” The rule as to the saving of exceptions to the ruling of the referee in. the admission of testimony, requires that the exception shall point out directly and specifically the evidence objected to. A general objection that the referee admitted incompetent and illegal testimony is not sufficient. In the case of Smith v. Haley, 41 Mo. App. 611, the court held, as stated in the syllabus: “In order that a party to a cause which has been tried before a referee may demand a review of rulings of the referee on the admission or exclusion of evidence he must, in the exceptions filed by him under the statute on the filing of the referee’s report, specifically point out the rulings of which he complains. A general exception by defendants that ‘the referee admitted illegal and improper evidence for the plaintiff, and excluded legal and proper evidence for the defendants,’ is insufficient.” [See, also, Wiggins Ferry Co. v. Railroad, 73 Mo. l. c. 419; State ex rel. v. Woods, 234 Mo. l. c. 24.]
Under the common law system of pleading, one form of civil action was assumpsit. In that form an action could be maintained upon a state of facts from which a contract would be implied by law. It was not essential that there was in fact a contract in the sense that the parties had entered into an agreement, either express or implied, as to the subject-matter of plaintiff’s cause of action. All that was necessary was that defendant had received benefits which imposed upon him a duty to the plaintiff, so that upon equitable grounds a promise was implied by law that the defendant should respond to the extent of the benefits received. Such a relation between the parties, because of the promise which had not been made in fact, but which the law implied, has been termed a quasi-contract. An example of such contracts given in the books is the relation subsisting between two persons when one has paid money to the other through mistake. In such case the law will imply a promise by the latter to pay to the former the amount of money so received.
Appellants contend that this was the character of contract counted upon in the petition in this case. Even if such contention were sound, it is difficult to
After having fully considered appellants’ complaint, we are satisfied that the finding of the referee is supported by the law and the evidence.
HI. We have examined the entire record herein, including the bill of exceptions, although no exception was saved to the action of the court in overruling the exceptions to the referee’s report. In the absence of such an exception, no matter of exception arising out of the action of the referee is open for review on appeal. [State ex rel. v. Woods, 234 Mo. 16; Wentzville Tobacco Co. v. Walker, 123 Mo. 652; Arkansas Land Co. v. Ladd, 103 Mo. App. 83.] In State ex rel. v. Woods, supra, l. c. 24, this court said: “And ■if no exception be saved to the ruling of the court upon these written exceptions to the referee’s, report they are not here for review.”
For the reasons stated the judgment is. affirmed.