68 Mo. App. 8 | Mo. Ct. App. | 1896
This action, which was commenced before a justice of the peace, is to recover for work done and materials furnished in the construction of granitoid sidewalks and terrace steps. The account filed before the justice is as follows:
“J. T?. Bray, to Western Granitoid Co., Dr.
(S. H. Busehman and F. B. Carroll, doing business as above, etc.)
To granitoid work on residence property on Cates avenue between Hamilton and Goodfellow:
Outside walks, 50x6 at 17j^e..................................$ 52.50
Driveway, 6x8 at2e..........................•................96
Terrace steps, 30 ft. at 80e................................... 24.00
Walk from terrace steps to front porch and from front porch to side porch, 189 sq. ft. at 17c............................. 33.50
$110.96”
On the other hand, the defendant’s evidence was to the effect that it was a bad job; that the walks and the steps of the terrace had cracked, and that the walk had sunk in several places; that the bed of cinders, the granitoid, and the top layer of cement, were not in ae
The instruction complained of is as follows:
“The court instructs the jury that if you find and believe from the evidence that the defendant employed plaintiffs about September, to furnish material and labor and to make for him granitoid pavements, walks, and terrace steps, as charged for in plaintiffs’ claim, and sued for in this cause. That you further find that the plaintiffs furnished material and labor and made the said granitoid pavements, walk, and terrace steps as set out in plaintiffs’ claim in a good workmanlike manner and made a first-class job of said work in accordance with the agreement for the doing of said work; and if you further find that the prices charged by plaintiffs are the fair and reasonable market value for the said granitoid pavement, tvalks, and terrace steps, which you may find the plaintiffs made for defendant at the time of doing the work, then you should return a verdict in favor of the plaintiffs for the fair and reasonable value of the materials and labor required in constructing said paving and steps.” The italics are ours.
Aside from its phraseology the instruction is-objeetionable, for the reason that there was no satisfactory evidence of the reasonable value of the work, nor of a contract price from which reasonable value is inferable. We have read the record, and the-only evidence which has the least bearing On the question is the following from the testimony of one. of the plaintiffs, viz.: “The first fifty feet was done under the petition, that was paid for; and the second fifty feet and the inside work amounting to $110.96 was not paid for.” Q. “Is that the work you are suing for now!” A. “The second fifty feet terrace steps and inside walk.” Q.
The judgment of the circuit court will be reversed and the cause remanded.