47 Mo. App. 439 | Mo. Ct. App. | 1892
Lead Opinion
I. It will be seen that plaintiff framed its petition on two counts — one on the special contract, and the other on quantum meruit. When the evidence was all in, defendants moved the court to require plaintiff to elect upon which count it would proceed and take
II. In the contract for doing the work, as entered into between the plaintiff and the defendant “ Electric Springs Company,” it was provided that said defendants shall pay therefor in throe notes of equal amounts, due respectively in six, twelve, and eighteen months from the completion of the work and bearing eight-percent. interest. Now defendants’ counsel contends that such a provision in the contract amounted to a waiver of plaintiff’s right to a mechanics’ lien. An instruction to that effect was requested, but refused by the court, and this action of court is assigned as error. If, when the work was completed, the.“ Electric Springs
III. The next point we notice is an objection relating to plaintiff’s second instruction, and which was given by the court. That instruction pertains only to the second or quantum meruit count of the petition. The court there substantially declared to the jury, that even though plaintiff did not comply with its contract, did not do the work, etc., in the manner it agreed to, yet if “said defendants used, possessed and enjoyed the same and still have it, in their possession, the jury will find for plaintiff on the second count in the petition,” etc. This instruction is subject to one just criticism. In this character of work, building contracts, if the mechanic fails to do the work as agreed, he cannot recover on quantum menoit on the mere showing thatthe
. Notwithstanding this defect in plaintiff’s second instruction, it was in this instance an error entirely harmless, since the jury did not found their verdict on the second count of the petition, but held the defendants on the first count, deciding that plaintiff did comply with the terms and conditions of the contract.
IV. The last objection we notice is, in the jvords of counsel’s brief, “that the judgment is erroneous in giving the lien against the ground precedence over the prior mortgages held by the Johnson County Savings Bank.” It is sufficient to say in answer to this, that the judgment does not attempt to adjudge or declare any such priority. The judgment neither reaches nor attempts to charge anything except the interest of the owner. The priority of the judgment creditor or incum - brancer is not settled in this instance. The court declined to let the jury pass on this question.
After a careful review of all the questions presented, the most important of which are here noticed, we discover no reason for disturbing the judgment of the circuit court, and the same is therefore affirmed.
Rehearing
ON MOTION FOR REHEARING.
It is contended on this motion for, rehearing that we overlooked a fatal objection made as to the nature of the action, brought by the plaintiff. It is claimed that “the real cause of action was the failure of the defendant company to execute the notes
There is more than one reason why this super-technical argument will not avail here. In the first place the defendants’ answer practically admits the consideration for the work was to be paid in money. In its petition the plaintiff alleges that for the work done, etc., “the said defendants agreed to pay plaintiff the sum of $1,030.” The answer admits “ that for and in consideration of, which these defendants promised to pay the plaintiff the sum of $1,030.”' It is true, however, that, in the subsequent count of the answer in the nature of an alleged counterclaim for dam i ges against plaintiff for alleged defective work, defendants set up the terms of the written contract in which it is stipulated that the work was to be paid for in notes. However, the allegations of the- answer proper make no such charge. The whole tenor and effect of the answer was to declare wherein the- plaintiff had failed to do the work in the manner agreed and provided for in the contract. So then, for this reason alone, the court properly refused defendants’ motion for judgment on the pleadings.
Again, it may be well doubted if counsel’s construction of the contract is the proper one. It seems
But now conceding the effect of this provision in the contract to be as claimed, and that it was a sale of goods on time, is plaintiff denied the right to prosecute this action? In this connection we are cited to numerous cases under the common law, of which Mussen v. Price, 4 East, is the leading, and which last case decides “ where goods were sold upon the contract that the ■ vendee was to pay for them in three months by bill of ■ two months ; that the contract was for a credit of five ■ months, and that the action of assumpsit for goods sold : and delivered could not be brought at the end of three , months upon the neglect of the vendee to give his bill .at two months.” Or as more generally expressed in .another leading case, “ when goods are sold to be paid .for by note or bill payable at a future day, and the mote or bill is not given, the .vendor cannot maintain <msumpsit on the general count for goods sold and 'delivered, until the credit has expired.” Hannas v. Mills, 21 Wend. 92. However, we might as well say .here that all these authorities agree that the vendor
The motion is overruled.