146 Mo. App. 197 | Mo. Ct. App. | 1909
This is an action for a balance alleged to be due plaintiff for putting in a sewer 398 feet in length, and extending along two lots owned by defendant in the city of St. Louis. The work was done under the following contract;
“This agreement made and entered into this l'lth day of April, 1906, by and between Alfred Bushnell, drain layer, and John A. Boyers, of the city of St. Louis, Missouri, witnesseth, as follows:
“Whereas the said John A. Boyers, the owner of the following lots of ground in Beber Place, between January and Dalton avenues, vis-. 398 feet as per plan and profile shown in City Block No. 4053 and B of St. Louis of said city of St. Louis, and the said Alfred Bushnell has the contract for the construction of the sewer twelve-inch pipe on Beber Place.
“Now, therefore, the said John A. Boyers, in consideration of the construction by said Alfred Bushnell, drain layer, and his agreement to connect the sewer being twelve-inch pipe three hundred and ninety-eight feet from city sewer on January avenue to Dalton avenue, and six in. connections into building line, connect house 5708 Beber Place, the said John A. Boyers, owner as aforesaid, hereby promises to pay said Alfred Bushnell, their assignees or representatives the sum of ($450) four hundred and fifty dollars as the cost of making said con*199 nection with said district sewer. Payable eighty per cent for work completed and balance in thirty days. To include all work shown on plans as required by city.
“Alfred Bushnell,
“J. A. Boyers.”
After the completion of the sewer it was approved by the proper city official, was accepted by defendant and $125 paid on the price. The balance of the price, $325, is what plaintiff asks judgment for in the case at bar, which was commenced before a justice of the peace.and went to the circuit court by appeal, where plaintiff had judgment and defendant appealed to this court. No answer by way of recoupment or counterclaim was filed, but the defense invoked is that by reason of a mistake in the plans and specifications for the work, it turned out, plaintiff was compelled to excavate a great deal less earth than the parties expected he would. The contract says nothing about-the plans or specifications, but names $450. as the price for the job, without referring to the quantity of excavation which would be required to lay the sewer. It appears a plan had been prepared showing the length of the sewer to be put in by plaintiff, where it was to connect at each end with the main sewer of the city, the topography of the ground, the degree of fall the pipe would have and the elevation of the main sewers, with which it was to connect, above the city directrix, a monument from which distances are computed in the city of St. Louis. Nothing is in testimony about who prepared the plan and wrote the data on it, but it is labeled “Project for Private Sewer, for John A. Boyers, Acht. & Bldr. Nov. 14, 1905.” The sewer to be laid by plaintiff ran from Dalton avenue to January avenue, and was connected with a main city sewer at a manhole in each of those places according to the contract and also according to the plan. Plaintiff laid the sewer and connected it with the mains at the right places. It is contended by de
As the appeal must fail on the merits, we have not examined some technical points raised against the abstracts of record.
The judgment is affirmed.