65 Mo. App. 568 | Mo. Ct. App. | 1896
In October, 1889, defendant Snyder entered into a contract with one Walker, wherein Snyder agreed to loan Walker $12,000,- to be used in the construction of six houses on some Kansas City lots owned by Walker. Snyder was to take' as security a deed of trust for $2,000 on each house and the real estate it occupied. It was what is called a building loan. Snyder was to pay out the money on Walker’s order, from time to time as the buil dings progressed. It was alleged in the petition, and the evidence quite conclusively shows, that it was agreed by Snyder and Walker that he (Walker) “would erect and build upon the real estate aforesaid six brick houses two stories' high, and alilce in plans, materials, and details as certain brick houses owned and erected by one Kresky on a lot situated or facing on Benton avenue, in Kensington addition,” Kansas City.
The petition further alleges that Walker complied with his agreement, but that Snyder refused to pay $1,200 of the money he had agreed to loan. C. P. Deatherage became interested in the transaction in that he signed, as security, a bond that Walker made to Snyder for the faithful performance of the contract, and from the further fact that the Deatheragé Lumber Company furnished the lumber used in the houses. And in this bond it was recited that Walker had procured the loan from Snyder on “the representation and assurance that he (Walker) will erect upon said described land certain buildings, consisting of six brick
Walker assigned his claim for the alleged balance of $1,200 to the plaintiff, who brought this suit.
The substance of the defense, as set up in the answer, was that Walker failed to erect the houses according to the plans and specifications agreed onthat the work and materials were inferior, and that defendant then agreed “with said Walker and said Deatherage, who had procured an order from said Walker for the balance due upon- said loans, that in view of the inferior manner in which said houses were being erected, said loans should be reduced to $1,800 upon each house, instead of $2,000, and that said notes so-executed as aforesaid should each be entitled to a credit of $200, and that the interest coupons be reduced to represent interest upon $1,800 instead of $2,000. That in pursuance of said agreement with said Walker and Deatherage, he paid out to said Deatherage, or' to his order, the full amount due upon said loans, so that, no indebtedness remains due from him on account thereof.”
Of the evidence it is sufficient to say that it tended, strongly to sustain the allegations of the answer. Defendant’s evidence tended to prove that the six houses were not built according to the plans and specifications agreed on; that they were not such houses as those erected by Kresky, either in size, quality of material, or character of workmanship, and failed in many substantial particulars to come up to the standard fixed by the contract. And in addition to this the testimony showed that Walker and Deatherage allowed mechanics’ liens to accrue for materials used in the erection of the houses. When the houses were nearing completion, Walker, it seems, abandoned the work and cast the burden on his bondsman, 'Deatherage. It was then,
On a trial by jury, there was a finding and judgment for defendant, and plaintiff appealed.
It must, of course, be conceded that the plaintiff occupies the same, and no better, position in this action, as would Walker, if the suit was prosecuted by him. The jury were in effect instructed that before they could find for the plaintiff for the alleged balance claimed on the loan, they should believe from the evidence that Walter had constructed the houses substantially according to the terms of the contract, that is, substantially like the Kresky houses. And again the jury was further instructed that if the parities got into a controversy as to the character of the houses, and settled such differences by agreeing that the loans should be reduced from $2,000 to $1,800 on each house, and that Snyder did lend and pay that amount, then the verdict should be for defendant.
Plaintiff, by evidence offered and instructions requested, sought to have the court submit the theory that even though the houses erected by Walker did not conform to the plans and specifications of the Kresky houses, yet if they were “in all respects as valuable and as good security for said loans as they would have been if they were exactly and strictly like said Kresky houses; and that said defendant Snyder had suffered no damage by reason of the manner in which the said houses were built,” then said Snyder had no cause to complain and was bound to pay over the balance of
In our opinion, the trial court ruled correctly. In -loaning his money, Snyder had the right to select the •conditions under which he would let Walker have it. If he (Snyder) exacted security of a particular character and Walker agreed to furnish it, then, on the clearest principles, Snyder could decline to part with the money until the security agreed upon was forthcoming. A party can not force upon the other contracting party something substantially different from that contracted for, even though the substituted article may be the equal or superior in value to that specified in the agreement. Halpin v. Manny, 33 Mo. App. 388. To hold otherwise would be to concede the right or power in one contracting party, without the consent of the other, to annul, change, or modify the terms of the joint agreement.
The case in hand furnishes no opportunity for the application of the doctrine that where one under contract erects an improvement upon the land of another, the builder may recover what the improvement is reasonably worth to the landowner, even though the work or materials are not of the quality contracted for. In the first place, this is an action founded on a contract and not in quantum meruit. The petition alleges that a specific contract was entered into between plaintiff’s assignor and the defendant, whereby it was agreed that Walker was to construct on his lots six houses of a particular character, and that defendant promised to loan him (Walker) a definite sum of money on each of them; that Walker performed his part of the agreement, but that defendant refused to loan the money. On this state of the pleadings, it is well settled that plaintiff can not recover anything until compliance of
In the second place, even if the pleadings justified it, the facts of this case do not come within the line of' cases alluded to. The rule invoked has its origin in,, and sole application to, a state of facts sui generis. The general rule is that if one agrees to do something,, of furnish something to another in a particular manner, or of a certain quality, for which such other is to pay a stipulated price, he must do the thing, or furnish the material, as agreed, or he can recover nothing. But where the owner of land contracts with a party to erect thereon a building of certain dimensions, character, and quality, and the contractor fails to do as he agreed,, but shall construct an improvement which, though not up to the standard of the agreement, is yet of value to-the owner, the law will imply a promise to pay a reasonable value for the benefit thus conferred. In such.
Complaint is made that the trial court erred in using the words substantial and substantially, in declaring Walker’s duty in erecting the particular houses according to the contract, without defining the meaning of substantial, etc. For example, the court told the jury that before plaintiff could recover, they should believe from the evidence that said buildings “were constructed substantially in accordance with said specifications,” etc. We think there was no error in the use of this language, or, at all events, the failure to define the word substantially could work no harm to the plaintiff. The word is one of common use and well understood by the man of ordinary intelligence. The jury would understand that they were to ignore mere unim
We have considered other minor questions mentioned in the brief, but think it unnecessary to discuss them in this opinion. The foregoing disposes of the substantial features of the controversy. We find the instructions to include and embody every principle of law applicable to the case; the judgment was clearly for the right party and will be affirmed.
