Blair v. Corby, 29 Mo. 480

Blair v. Corby

29 Mo. 480 | Mo. | 1860

Scott, Judge,

delivered the opinion, of the court.

As this case only involves questions as to the admissibility of evidence and the propriety of instructions given and refused, it will be sufficient to notice the points made in the appellant’s brief, who was defendant below.

The first error complained of by the appellant is the admission in evidence of sundry accounts between him and the plaintiff in relation to the subject of the suit. As the accounts were made out by the appellant himself we do not see on what grounds they can be regarded as inadmissible against *486him. They contained admissions which were competent evidence for the plaintiff. A judgment will not be reversed for the admission of testimony which is merely irrelevant. Unless the evidence tends to mislead or prejudice the minds of the jury, the fact of its being merely irrelevant is no ground for a writ of error or appeal.

The next error alleged is the giving of the sixth instruction for the plaintiff. It is objected to this instruction that it submitted a question of law to the jury, and that it warrants a recovery on a ground not stated in the petition. There was no question in the [case] as to what facts would constitute a forfeiture; the only matter in dispute was the fact of a forfeiture. We do not understand the petition as only alleging that Duff & Co. actually paid the sum due on the final estimate, but also that it was in effect paid, as the appellant had by his conduct forfeited his right to receive it. Under this view of the petition, we see no error in the instruction. The petition is not as intelligible as it might have been made, but it does not appear that any attempt was made to make it plainer.

The eighth instruction given for the plaintiff is next alleged to be erroneous. That instruction certainly contains a legal proposition. We do not understand it as raising the question, whether, in an action on a special contract to be performed within a given time, under an allegation that such contract has been performed, it would be sufficient that the contract had been performed but not within the stipulated period. A variance between the petition and proof must be made at the trial, so as to enable the plaintiff to amend. We do not see how the question of a variance can bo raised in this court for the first time in a case like this. There may be cases where such a variance might affect the merits of the judgment, but this is not 'one of them.

Complaint is made that the court refused to give the first instruction asked by the appellant. We are of the opinion that the refusal did not prejudice the appellant. The con*487tract was read in evidence without objection. No objection on the ground of variance was made at the time. The party, then, under the circumstances of this case, should not have been permitted to raise it by instruction, when the plaintiff had no opportunity of amending and accommodating his evidence to the amendment. The contract, though not performed within time, was in all other respects considered as binding, the forfeiture for a failure to comply with this stipulation having been waived. We can clearly see that the appellant was not injured by the refusal of this instruction.

The objection to the refusal of the second of appellant’s instructions has been answered by what has been already said.

As it appears that the fourth instruction was based on the second specification of the seventh article of the contract, we do not see how its refusal affected the merits of the case.

Whether the fifteen per cent, retained by Duff & Co. by their contract with the appellant was a penalty or not is a matter with which the plaintiff has no concern; nor do we see how the question can affect this case. It seems to be an abstraction.. There was no error, then, in refusing the eleventh instruction.

In relation to the retained percentage, it may be remarked that the contract between the appellant and plaintiff contains no reference to the contract between the appellant and John Duff & Co. If the appellant had a contract with Duff & Co., by which they were to retain a percentage as a security for the completion of the entire work, if the appellant sublet to the plaintiff, with a similar clause, a portion of the work to be done by him, and if by reason of the appellant’s failure to comply with his contract, nof. caused by the fault of his subcontractor, he fails to receive the retained percentage, that is no reason, if the subcontractor has performed his work agreed to be done, and' it has been received, he should not have the percentage retáined under his contract. *488To bold otherwise would be to allow the appellant to take advantage of his own wrong. The plaintiff is entitled to his retained percentage, having performed his contract; and as, by the terms of the contract, he was entitled to it a certain number of days after the appellant had received it, if the appellant has by his own conduct prevented himself from receiving the percentage clue him from John Duff & Co., which he was to pay the plaintiff after the receipt of it by himself, under such a state of facts, what can be clearer than that the plaintiff is entitled to recover the percentage retained under his contract ? Affirmed.