Heitland Grate & Mantel Co. v. Culver, 181 Mo. App. 691

181 Mo. App. 691 | Mo. Ct. App. | 1914

REYNOLDS, P. J.

Plaintiffs', partners under the name of Heitland Grate & Mantel Company, commenced this action before a justice of the peace by filing an account against defendant for furnishing and laying tiling in the office and dining room in a hotel building of the defendants, at an agreed price of $600, as it is stated, and for extra work, the latter amounting to $11.83.

Defendants, appearing, filed a written answer, referring to the account as a complaint and denying each and every allegation therein; pleading payment of all the' items of the account and of all indebtedness owing to plaintiffs; and further setting up that the agreement between plaintiffs and defendants was that the latter were to furnish tile and lay the same into floors in the dining room and office room of defendants’ hotel in Clarence, at and for a certain price per square foot, to-wit, thirty-five cents per square foot for the office room and fifty cents per square foot in the dining room, the dining room containing 675 square feet and the office room 512% square feet; that on May 16,1907, defendants paid plaintiff $88.79, and afterwards by their check tendered and paid plaintiff the further sum of $404.21 in full payment, satisfaction and settlement of all sums due plaintiffs from defendants on account of their work and material; that plaintiffs had accepted the check and collected and retained the sum, represented in it, to-wit, $404.21, whereby defendants' aver plaintiffs are estopped from claiming any further sums from defendants.

Defendants prevailing before the justice, plaintiffs appealed to the circuit court. At a trial before that court and a jury, at the conclusion of the evidence for plaintiffs, the court, at the instance of defendants, instructed the jury that under the pleadings, the law and the evidence” of plaintiffs, plaintiffs could! not recover. No exception was saved to the giving of this instruction. The jury returning a verdict accordingly, plaintiffs in due time filed a motion for new trial, assigning error of the court in giving the instruction; that the verdict was for the wrong party; that upon the evidence offered plaintiffs were entitled to recover; and because the verdict of the jury is not supported by the evidence nor by the weight of the evidence. The trial court, filing no statement of the grounds upon which it acted, sustained this motion and granted a new trial. From this action, defendants have duly perfected their appeal to this court.

The errors assigned are to the action of the court in setting aside the verdict and granting a new trial, it being claimed that the court erred in receding from its action directing a verdict for defendants, as under plaintiffs’ own evidence they were not entitled to recover, and! that the action of the court in directing a verdict for defendants was right and its action in setting aside the directed verdict was error.

It is argued that as no exceptions were saved by .plaintiffs to the action of the court in sustaining defendants’ demurrer to the evidence, the action of the trial court in granting a new trial on the ground that such instruction was erroneous cannot be sustained by the appellate court. This proposition is settled contrary to the contention of learned counsel for appellants by the decision of our Supreme Court in Green v. Terminal R. R. Assn., 211 Mo. 18, 109 S. W. 715. As in that case, so here, the defendants appealed from the action of the court in setting aside the verdict. It was said by our Supreme Court, in the above case, in answer to the argument of appellant in that case, that no exception had been saved to the action of the trial court in admitting certain evidence: “If this were plaintiff’s appeal from a judgment against him the absence of his exceptions would be fatal to his contention; but as it is defendant Is appeal and as the trial court presumably acted under its own ruling and saw the exception in its mind’s eye though none was made, and undertook to correct what it believed its: own error, the question is presented in another form and we may with propriety consider the matter on its merits.”

The second point argued by the learned counsel for appellants, is that the court erred in permitting plaintiff to offer in evidence letter press copies of certain letters, written by plaintiffs to defendants. Beading the proceedings at the trial in connection with that offer, we see no error in this action.

It is further argued that there is an entire failure .of proof on plaintiffs’ part, counsel contending that the action is on a special contract and that plaintiffs’' own evidence showed that the contract declared upon had never been performed by them. We are compelled to differ with counsel as to the evidence on that point. One of the plaintiffs testifying, and the only witness in the case, testified in the most unequivocal manner that the contract was taken at a lump sum for laying* the tile and that while in arriving at this lump sum there had been a selection of tile of different prices, according to the quality of the title, in order to bring the whole price within the sum defendants were willing to pay, yet his testimony was positive that the contract was not based upon the specific price of tiles, but was for the whole work of laying the floors of the two rooms at a specified price of $600. The additional item of $11.83 was for extra work outside of the contract price. Even the answer filed by defendants pleads an agreement, the difference between the parties being as to the terms of the agreement. So there was no total failure of proof, not even a case of variance, if the jury accepted the version of the plaintiffs’ witness.

The final point turns on the question of accord and satisfaction. A careful reading of the testimony in this case, putting a construction upon it most favorable to defendants, is that the evidence given by the witness for plaintiffs who testified as to this matter, and that furnished by the correspondence between the parties, which was produced, left the question as to whether there had been accord and satisfaction open for determination of the jury. The correspondence between the parties with reference to the alleged payment and receipt of the check brings- this case very closely within the facts present in Bahranburg v. Conrad Schopp Fruit Co., 128 Mo. App. 526, 107 S. W. 440; so closely indeed, that a reference to the law there announced by our court is applicable here. Here, as there, the circumstances surrounding the payment, receipt and retention of a sum of money less than that claimed by plaintiffs were snch that an inference might be fairly drawn either that there was or was not a tender in full payment. The evidence as to this was not of snch a character as would authorize the trial court to declare, as a matter of law, that it proved an accord and satisfaction. It presented a case which should have been submitted to the jury under proper instructions.

The action of the learned trial court in sustaining the motion for a new trial was proper on any of these grounds. That action is affirmed and the cause remanded for further proceedings.

Nortoni and Allen, JJ., concur.