5 Mo. App. 262 | Mo. Ct. App. | 1878
delivered the opinion of the court.
This is an action to recover the sum of $2,100, which the plaintiff alleges the defendants agreed to pay him for building a sewer. The petition avers that the plaintiff built the
The instructions given by the court below, at the request of the respondent and of the appellants respectively, present simple and obvious’propositions of law, representing the two different theories. The following was given at the request of the appellants : —
“If the jury shall believe, on the whole evidence, that Farley agreed with Leathe to build the sewer in question,*264 and to take the Tunnel Company’s note for the amount of his bid for the work, then the jury must find a verdict for the defendants.”
This, in connection with the others which were given, sufficiently determined the law of the case, and presented the real issues which the jury were to pass upon. There was no need of the following, which the court gave, adding, however, of its own motion, the words in italics; and it would have been better and less confusing to the jury for the court to have refused the instruction as asked : —
“ That even though the jury should believe that Farley expected Pettes & Leathe to pay him for the sewer, and did not understand or agree that he would receive the Tunnel Company’s note in payment for the work, yet if the jury shall also believe from the evidence that the defendant Leathe never did agree that he or his firm would pay for building the sewer, but understood, as a result of his conversations with Farley, that Farley was to take the Tunnel Company’s note in payment for it, then the jury must find verdict for the defendants, unless Leathe Tcnew what Farley’s understanding was.”
On the evidence, it was plain that the agreement was either that the money should be paid or the note of the company taken for building the sewer, and this was the single alternative presented. There was no reasonable foundation, on the evidence, for the hypotheses of misunderstandings and results, and this instruction served’only to obscure the plain ones given. But, apart from this, though the appellants complain, it is the respondent who has ground to complain of the giving of this instruction. The law does not make one man answerable for another man’s logic,— certainly not one litigant for his opponent’s logic,— but this instruction makes Farley responsible, for the correctness of the conclusions that Leathe might have drawn; in other words, for Leathe’s understanding of the results of his own conversation. Again, it is for the jury, not for parties, or even
It is equally apparent that the instruction was bettered,, not worsened, by the addition. The appellants contend that the court below improperly added the words in italics, and that Leathe could not have understood, as a result of his conversations with Farley, that the latter was to take the-note of the company, at the same time that he (Leathe)' knew that Farley’s understanding was the opposite of his (Leathe’s) on this point; but if we are to deal with such far-fetched matters, it is evident that, from some expression-dropped by Farley during the talk, Leathe might have-gathered that Farley had drawn the conclusion that he-(Farley) was to be paid the money by Leathe, while in fact Leathe, though talking ambiguously, had never agreed to-pay the money, but only to give the company’s note : this would have presented the case the court below intended to-cover. The instruction, as asked, leaves out of view that Farley went on and did the work, and that Leathe allowed him to do it; but in the case put by the instruction, the law forbids a man to close a contract, to allow the other party to do work under it, and then to say non lime in fmdera veni.
Thus, in the case supposed by the court, Leathe, seeing;
On the trial, witnesses were introduced, by the respondent, who made bids for the construction of this sewer, and asked on what terms they were requested by the defendants to make their bids. Against objection, they were allowed to answer, and, in answering, one witness stated that the bid he made was for cash. The answer is further objected to ; but if, as appears, the bid was received, the objection to the answer is substantially that to the question. As it does not follow that a person who makes or proposes to make a contract of one kind with one person is obliged to make a contract of the same kind with another person, this evidence .should not have been admitted. On the same principle, evidence would be admissible to show that the defendants, in such cases, had a habit of making cash contracts. As The case stands, however, a result presented is this : that the evidence was admitted out of its proper order. Should we reverse for this error, the same evidence, substantially, would come in, only at another period of the trial. As against the testimony of the appellant Leathe, it could, in substance, be introduced to show how he was acting, to prove contrary statements, etc. Under the cases, we will mot reverse for this error. The State v. Porter, 26 Mo. 209; Dozier v. Jerman, 30 Mo. 220; O’Flaherty v. Kellogg, 59 Mo. 490.
The verdict is intelligible, and there can be no doubt what
The judgment of the court below will be reversed, and judgment will be entered here for respondent for a sum equal to $2,000 and interest from the date of bringing suit in the Circuit Court.