25 Mo. 41 | Mo. | 1857
delivered the opinion of the court.
This was a suit to recover damages for the mal-performance of a building contract, and for damages sustained to the plaintiff’s property by reason of the falling of the building. There was a trial below, and verdict and judgment for defendant; a motion for a new tidal was made and overruled, and the plaintiff brings the case here by appeal.
The only points raised in this court by the appellant for reversing the judgment depend upon the rulings of the court below in admitting the record of a suit in the Circuit Court of St. Louis county between the same parties on a note given on account of the same contract, the foundation of this present suit; the rejecting parol evidence to contradict the record so given in evidence, and the refusing to give as well as the giving of instructions. There is nothing in the question about the admission of the record, and nothing in refusing to admit parol testimony to contradict it. When the record was offered in evidence the plaintiff objected, but he made no specific objection — pointed out no defect; nothing was brought to the mind of the court in order to pass upon the admissibility or incompetency of the evidence. This general objection has again and again been decided by this court as in fact amounting to no objection. The practice of making wholesale objections to the admission of a document as evidence, and then coming here for the purpose of pointing-out specific causes of objection, specific defects, which, if mentioned below, could in most cases be obviated by the adverse party immediately, has met the decided disapprobation of this court. We will not regard such objections. We will not subject the inferior courts to the task of examining- documents, of poring over long and sometimes nearly illegible instruments of writing and of records in order to ascertain whether or not they can be admitted in evidence. Let the objecting party point out the causes for which he objects, and then the court can at once see, and the adverse party have the opportunity of remedying or of doing away the objections.
The first instruction here given, being No. 6, has reference, not to the mal-performance of the contract to build, but to any damages sustained by the plaintiff by the falling of the house. The objection to the instruction is in reference to the phrase “ after having accepted.” This phrase would do very well when used in regard to movable property. But surely the idea of a contractor building for a man a house on the owner’s land, and the owner not ordering it to be pulled down or taken away, or his even using it, can not be such an acceptance as will destroy his right to sue for any violation of the contract, if such violation be known or unknown at the time. The instruction had no tendency to assist the jury in forming a proper verdict in the case. Now if the evidence showed that the house was so badly built or built of such frail materials that a prudent man would not risk his property in it, if he could see the danger by merely examining the outside appearance, and the owner did put property — furniture, for instance — in such a house, then the owner must lose by his own carelessness. He can not recover for such loss caused by the falling when he, as a prudent man, should not have run the risk. But this does not interfere with his right to sue for a violation of the contract to build. We consider the instruction confines the point of recovery to the damages sustained alone by the mere falling of the house, and, as we think the plaintiff can not recover for any other injury than such as arises from the breach of the contract to build, and
The seventh and eighth instructions may be looked upon as producing no injury to the plaintiff. The ninth instruction is improper. Here the phrase, “ plaintiff accepted the same,” again is used. The jury could be easily misled by this instruction, and it was error to give it. The tenth and twelfth instructions did not injure the plaintiff. There is none marked as eleventh. The thirteenth instruction did not particularly draw the jury’s attention to the fact whether it was the improper or defective workmanship, or improper or insufficient materials used in the building, that caused it to ¡give way before the force of the tornado or not. This in.struction puts the falling of the house as caused by the tornado in one point of view, or as caused by defective workmanship or the materials in another point of view. Now if it was the improper and insufficient workmanship, or the defectiveness or insufficiency of the materials used, that rendered the house unable to withstand the tornado, then the tornado did not alone produce the damages, and the defendant should not be permitted to hide himself and escape from the consequences of his own conduct behind the force of the storm. This instruction was erroneous. We see no error in giving the fourteenth instruction. The principles laid down in the fifteenth, sixteenth and seventeenth instructions, in regard to damages, can not have prejudiced the plaintiff’s case; but the phrase, “ accepted the house,” or “ accepted the same,” runs through these instructions, and renders them objectionable. All the way through this long string of instructions the court has been applying the terms of law used in regard to movable property to this contract to erect a house for a man ion his own land. Now we will not pretend to say but that ,the owner may do such acts in regard to the house as will ¡plainly show to the jury that he considered the contract completed and the work performed in accordance therewith, and that he considered the workman discharged from all liability on account of the contract. But to say that a man accepts
As to the instructions asked by the plaintiff, the first and second were properly refused; of .'the. others, the principles proper to be given were substantially stated to the jury by the court. This court finds nothing improper in refusing to give the instructions asked, when considered with those given by the court.
We can not dismiss this subject without remarking, that this is a most unnecessary suit — a most uncalled for appeal to the courts of the country for redress. There is pending a suit which was before this court and reversed and remanded, in which the matters set forth in this suit are used by defendant in that other suit as a defence, and which this court said he could use to reduce the debt due to the plaintiffs in that action. (Gamache v. Grim, 23 Mo. 38.) Let the judgment below be reversed, and the cause remanded; the other judges concurring.