76 Mo. App. 522 | Mo. Ct. App. | 1898
This is a suit on a quantum meruit to recover for work and labor, in which plaintiff had judgment and defendant appealed.
The plaintiff’s evidence tended to prove that when he had bored down about the depth hereinbefore stated, he struck a cave which made it necessary, to enable him to proceed with the work, to put in casing from the top of the well to the bottom of the cave, that plaintiff applied to defendant to furnish the casing so made necessary but that with this request defendant refused to comply, in consequence of which the plaintiff was unable to further proceed with the work. The defendant offered to furnish plaintiff with some thirty feet of casing, which he insisted was all that was requiied, and that it was only necessary to put in casing at the point where the well passed through the cave instead of all the way from the top of the well to the bottom of the cave.
(1) The issues of fact were whether or not it was necessary to enable the plaintiff to complete the well for him to put in casing from the top of it to the bottom of the cave; and whether or not the defendant was requested to furnish such casing but refused to comply therewith? (2) Whether or not the defendant in boring the well encountered any cave at all? And (3), whether or not the plaintiff acted in good faith in insisting that it was necessary to put in casing for the whole depth of the well in order to complete the same, or whether or not such insistance was not made with a design on the part of the plaintiff to compel the defendant to pay him for his work before the well was made to furnish the water supply called for by the contract?
It will be seen by reference to the cases just cited that there is a marked distinction between a case like that of Yeats v. Ballentine and the one here where the plaintiff is prevented from proceeding with the contract to completion on account of the acts and defaults of the defendant. The rule laid down in Yeats v.
The plaintiff made no showing in his motion and affidavits in support thereof entitling him to a new trial on the ground of newly discovered evidence.
The case was fairly submitted to the jury under the evidence and instructions. The verdict must be regarded as conclusive on us.
Judgment affirmed.