| Mo. Ct. App. | Jun 8, 1908
The plaintiff’s action is based on an alleged contract whereby he agreed with defendant to erect for him a dwelling house for which he was to receive a certain compensation for each day he worked, on the ten-hour schedule, and that he was to receive a certain compensation for each of his workmen for their day’s work. That he erected the house and that the aggregate of his own work and of his workmen at the prices agreed upon was the sum of $700.85. He admitted a credit of $125 paid by defendant.
The defendant in his answer denies the contract as stated by plaintiff, and alleges that the plaintiff agreed to erect the house in question for the sum of $350; that after the contract was made, he employed plaintiff to perform further work in the building, of a porch for which there was no agreement as to what should be paid plaintiff, but he alleges $50 was a reasonable price for its construction. He claims credit in addition to said sum of $125, for $4.05 paid plaintiff for a certain window, and also for $46 balance for the board of some of plaintiff’s workmen. He admits a balance due plaintiff of $225.06. The judgment was for plaintiff for the amount of his claim and the defendant appealed. The error complained of is, that, the plaintiff
The evidence went to show that there was an agreement between the parties that plaintiff was to put - up a building for defendant on a certain plan and of certain dimensions for the sum of $350, but it was shown that the plan and dimensions of the house were changed, and the evidence was conflicting as to whether or not plaintiff agreed to the change, and the testimony of the workmen is to the effect that the house was not constructed according to said plans. The evidence of the plaintiff was to the effect that there was no contract between the parties as to how much defendant was to pay plaintiff by the day for his own work and that of his workmen. He stated as follows: “I told Mr. Drew I would furnish men, I would not work on it unless he hired the men I had to work for him, he told me that if any of the men didn’t suit him ‘I will come tell you and make complaint to you,’ I hold him that they would work for me for less money than they would for him. He said he would make up his mind to build that house as it was or would change it and he would tell me before I went to work whether he would take the contract or the day work and he never told me anything about it.” He was asked: “Did you tell Mr. Drew that you were working by the day?” And answered : “I gave him my price. . Q. Did you tell Mr. Drew you were working by the day and not by the contract price. A. No, sir.”
Taking plaintiff’s own evidence it shows that there was no. agreement that defendant was to pay plaintiff for his work and that of his workmen any certain sum per day. He was not therefore entitled to recover on
Under this state of the pleadings and the evidence the plaintiff was only entitled to recover on the theory set out in defendant’s answer.
Eeversed and remanded.