210 Mo. 491 | Mo. | 1908
This is a suit for damages for breach of certain contracts and bonds for the doing of certain public work in the city of St. Louis. The petition cordains five counts, each based upon a separate contract. The contracts differ only in respect to dates, penalties; and the character and quantity of the work to be performed under each, and the several counts of the petition are varied to meet these minor differences. It will, therefore, be only necessary to refer to one, the first count of the petition, which alleges in substance:
That on the 28th day of June, 1900, the defendant contracting company, as principal, and the defendant surety company, as security, entered into a bond and writing whereby they bound themselves unto the city of St. Louis in the penal sum of $5,529.05, which said bond was subject to the conditions that if the defendant contracting company should faithfully and properly perform the contract preceding the bond, and of which the bond forms a part, according to the terms of said contract, and should, as soon as the work contemplated by the contract was completed, pay to the proper parties all amounts due for material and labor used and employed in the performance of the contract, then the obligation should be void, otherwise to remain in full force and effect. That the contract was entered into on the 28th day of June, 1900, and by its terms the defendant contracting company undertook and agreed
The petition sets out the items of the work to be performed and the prices to be paid therefor, and then states that plaintiff was to pay for the work and materials in special taxbills against the lots of ground adjoining Easton avenue in proportion to their frontage on the improvement. Continuing, the . petition states that the defendants did-not perform the conditions of their contract, and bond, but failed, neglected and refused to commence work as requested in writing dated October 8, 1900', and in subsequent notices, and failed to. comply with the specifications and stipulations of said contract in that said defendant contracting company failed and refused to perform the work or any part thereof, but abandoned both the work and contract; whereupon, plaintiff annulled and canceled said contract in the manner provided for in such case by the terms thereof. That thereupon the Board of Public Improvements of the city of St. Louis, in accordance with the terms of said contract, proceeded to relet the work to J. E. Perkinson, who was the lowest and best'bidder for the same, and proceeded to have the work completed by said Perkinson; but that plaintiff was compelled to pay said Perkinson, in the manner provided for by said contract with the defendant contracting company, certain prices and amounts for such work, all of which the petition sets forth in detail. Then follows the allegation that, under the said contract with the defendant contracting company, said defendant, for all of the materials and labor employed, would have been entitled to receive, at the prices fixed by the contract, the total amount of $6,772.16, but that
The petition further states “that plaintiff brings and maintains this suit as the trustee of an express trust for itself and the owners of the several lots of ground against which the said' several taxbills were issued; and plaintiff in the event of recovery will distribute any amounts recovered among the owners of the several lots charged with the cost of the aforesaid improvements in the same proportion in which the said several owners were compelled to contribute for the -cost of said improvements.” That, “by reason of the breach of the contract on the part of said defendant, Gr. H. Wright Contracting Company, and its failure and the failure of defendant City Trust, Safe Deposit •& Surety Company of Philadelphia, to observe and fulfill the conditions of their said bond, the plaintiff, as trustee as aforesaid, has sustained and suffered -damages in the said sum of $63.30.”‘
Plaintiff prays judgment for the penalty of the bond, and asks that execution issue for the sum of $63.30', with interest and costs.
The defendants filed their answer to the petition, ■and to each count thereof, which answer admits that •defendants “entered into a bond whereby they bound themselves to the city of St. Louis in the penal sum stated, subject to the conditions thereunder written as stated in said count, but the defendants deny each and •every other allegation in said count not hereinbefore specifically admitted.” Defendants also-set up in said
The case was referred by the court to a referee, who heard the evidence and filed his report and findings. The referee found for the defendants and against the plaintiff in its alleged capacity of trustee of an express trust, and found for the plaintiff and against the defendants on each count'of the petition for the penalty of the bonds, and recommended judgment in favor of the plaintiff for nominal damages only.
Plaintiff filed exceptions to the referee’s report, which were sustained"by the court, and judgment was entered up in favor of plaintiff and against both defendants for the sum of the amounts prayed for in the several counts of the petition, to-wit, $10,033-.71, together with interest, which increased the judgment to $12,023.72.
The defendants duly excepted to the action of the court in rendering said judgment, and filed their motions for a new trial, which being overruled, they saved their exceptions and appealed.
The conditions of the bond are not fully set out in the petition, the language of the bond being as follows :
“In the event the said G. H. Wright Contracting Company shall faithfully and properly perform the foregoing contract according to all the terms thereof, and shall, as soon as the wort contemplated by said contract is completed, pay to the proper parties all amounts due for material and labor used and employed in the performance thereof, then this obligation to be void, otherwise of full force and effect, and the same be sued on at the instance of any material man, laboring man or mechanic, in the name of the city of St. Louis to the use of such material man, laboring man or mechanic, for any breach of the condition hereof.”
The petition is as much part of the record in this
“The plaintiff now brings and maintains this suit as the trustee of an express trust for itself and the owners of the several lots of ground against which the said several taxbills were issued; and plaintiff, in the event of recovery, will distribute any amounts recovered among the owners of the several lots charged with the cost of the aforesaid improvements in the same proportion in which the said several owners were compelled to-contribute for the cost of said improvement.
“Plaintiff says that by reason of the breach of the contract on the part of said defendant, G. H. Wright Contracting Company, and its failure, and the failure of defendant City Trust, Safe Deposit & Surety Company of Philadelphia, to observe and fulfill the conditions of their said bond, the plaintiff, as trustee •as aforesaid, has sustained and suffered damages in the said sum of $63.30."
These were among the most important allegations of the petition, and it was upon these same allegations that it was held in St. Louis v. Wright Contracting Co., supra, that plaintiff could not recover. Under the statutes and authorities referred to by plaintiff, this court has power after final judgment rendered in any cause, in furtherance of justice, and upon such terms as may be just, to permit the amendment, in affirmance of such judgment, of any record, pleading or process, by adding or striking out the name of a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by rectifying defects or
All of the cases cited and relied upon by plaintiff as supporting its contention that it has the right to amend the petition by abandoning the parts heretofore indicated have reference to some matter specified in the statute, or which fairly came within its provisions; but none of them goes so far as is sought to be done in this case. Moreover, the case was tried upon a theory entirely different from that upon which plaintiff now seeks to submit it; that is, that the provisions of the general contract filed with the petition as an exhibit, for the breach of which the suit is prosecuted, was a contract between the defendants and the lot-owners, and that they were entitled to recover for the breach as parties thereto. It needs but a casual reading of the pleadings, and the proceedings before the referee and the court, to show that such was the ease, and the case must be tried in this court upon the same theory as in the court below. Had the city claimed that the bond was one of mere indemnity to it, and that it had been
It is well settled that a cause must be heard in the appellate court upon the same theory as that upon which it was tried in the trial court. [Walker v. Owen, 79 Mo. 563; Minton v. Steele, 125 Mo. 181; Dice v. Hamilton, 178 Mo. 81; Meyer Bros. Drug Co. v. Bybee, 179 Mo. 351.] And it may be said that no other theory is possible. Tried in this court, as it must be, upon the same theory it was tried in the court below, the able and exhaustive opinion of Judge Woodson in St. Louis v. Wright Contracting Co., supra, covers all the points at issue in this case. Following the law as declared in that case, the judgment is reversed.