182 Mo. App. 40 | Mo. Ct. App. | 1914
This is an action to recover the balance of the contract price for removing and rebuilding a concentrating lead and zinc mill.
In the early part of 1912, defendants, Van Hoose and others, held a mining lease on what is known as the “Aylor land” in Jasper county. In order to mine it properly, it was necessary to erect a mill, and they purchased what was known as the Wolf’s Heart mill located at another place in the county, and on April 22, 1912, entered into a written contract with plaintiff Knost to tear it down, move it, and rebuild it on the leasehold. The written contract provided that Knost was “to do all work in workmanlike manner” and “give satisfaction in every respect” and that he would “test this mill out when completed and guarantee this mill to clean.” For this work Knost was to receive $2875. He commenced his task immediately and was engaged in the work until the following September. During this time defendants paid him all of the contract price except $505.90, and it is to recover that amount that plaintiff sues. Plaintiff alleged full compliance with the terms of the contract on his part.
Defendants/ answer contained a general denial, together with a counterclaim in which they sought to recover $1000 which they claimed to have expended in bringing this mill up to the standard of efficiency required by the contract, alleging that plaintiff failed to do his work in a workmanlike manner or to give satisfaction, and that when plaintiff tested the mill it was not ready to start and failed to clean ore, and that by reason of the faulty construction, they were compelled to employ another contractor to remodel the mill at the cost aforesaid.
The reply put the new matter in issue.
It is not seriously contended by defendants that plaintiff did not make a case for the jury. There is a square conflict in the evidence.
The judgment in this case must be reversed and the cause' remanded because of reversible error in the instructions, but to guard against error in another trial and a consequent appeal, it is thought expedient to rule on two of the grounds pressed by appellants before reaching the point on which the decision goes.
Appellants complain that the court erred in not permitting their witness, Milton, to answer four questions, all embodying the same idea. The first question was not answered because the witness did not understand it, and no objection was made. The second question, to the same effect, was objected to because it called for a conclusion, which objection was sustained, but defendants saved no exception. The same is true as to the third question which was to the same effect. The fourth question, to the same effect, was as follows: “I will ask you to state this, whether the work which was done there, not whether the mill was completed in a proper manner, whether the work was done in a good workmanlike manner?” The same objection was made and sustained and exception saved. We thinlr the action of the trial court was entirely correct. If that kind of question could be asked in a ease of this kind, it would be useless to take up the time of judge and jury in hearing witness after witness detail the actual conditions existing (represented here by a printed record of nearly three hundreds pages), but it would suffice for the opposing litigants to retain experts to determine by opinion the very question that the jury supposed it was called upon to decide from
The instruction given for the plaintiff is' as follows :
“The court instructs the jury that if you find and believe from the evidence that the plaintiff removed and rebuilt the mining mill and concentrating plant mentioned in the evidence in substantial conformance and compliance with the terms and specifications of the contract between the parties, introduced in evidence, then the plaintiff is entitled to recover - on the first count of the petition, the unpaid balance of the contract price therefor, to-wit, the sum of $505.90, and*47 6 per cent interest thereon from October 30th, 1912, to date.”
Defendants complain that this instruction does not fa the proper measure of damages; that it should have closed with a provision of this character: ‘ ‘ Less such sum as you may find and believe from the evidence defendants were obliged to pay for the purpose of making plaintiff’s work comply with the terms of his contract.” This modification of the instruction would be proper and necessary if the defendants had merely sought a reduction of the amount due on the contract price by reason of defective work or materials and the case was being tried on that theory. But in this case the defendants plead the loss and damage by reason of plaintiff’s failure to do the work in compliance with the contract as a counterclaim to be found affirmatively by the jury and then to strike a balance due to' plaintiff or defendants as the verdict for the one or the other might be the greater. Under the theory on which the case was tried, defendants are in effect saying that not only the defenses must be predicated in plaintiff’s main instruction, but the counterclaim as well; that the principal instruction, must, as a prerequisite to plaintiff’s recovery, require the jury to find against defendants’ defenses and also their counterclaims. A sufficient answer is that plaintiff did not sue on quantum meruit, but for a definite unpaid balance on a written contract specifying a fixed price for work to be done. In such case, the amount recoverable is fixed by the contract. [Budd v. Hoffheimer, 52 Mo. l. c. 304, 305; Marshall v. Ferguson, 101 Mo. App. l. c. 657, 74 S. W. 393; Witty v. Saling, 171 Mo. App. 574, 154 S. W. 421.] Defendants’ counterclaim was included in other instructions. This court ha*s held that it is not reversible error to give an instruction for the plaintiff covering only the facts authorizing a recovery, where a separate instruction is given covering an independent matter of defense, such
Appellants justly complain because the court in the instructions (especially No. 3) given at the request of the plaintiff told the jury that if plaintiff removed and rebuilt the mill in substantial compliance with the terms of the contract, defendants could not recover anything on their counterclaim, contending that the true rule is that substantial performance of a building contract is sufficient to support a recovery, but that it is not the full contract price that can be recovered. Defendants duly excepted to those instructions.
It is held in this State .that substantial compliance with such a contract will support a recovery. [Line v. Mason, 67 Mo. App. l. c. 283; Hovey v. Pitcher, 13 Mo. l. c. 202; Id., 16 Mo. 436; Crapson v. Wallace Bros., 81 Mo. App. l. c. 684; Deatherage Lumber Co. v. Snyder, 65 Mo. App. 568, 577; see, also, 24 L. R. A. (N. S.) 327, note.] In Monocacy Bridge Co. v. American Iron Bridge Mfg. Co., 83 Pa. St. 517 (cited in Boteler v. Roy, 40 Mo. App. l. c. 238), it is held that an instruction that if the builders of a bridge have substantially complied with their contract, they are entitled to recover the balance due them on the contract price is erroneous, because the jury would have the right to make a deduction as compensation to the defendants. [See, also, McCue v. Whitwell, 156 Mass. 205, 30 N. E. 1134; Elliott on Contracts, Vol. 4, Sec. 3694, page 862; 24 L. R. A. (N. S.) 351, note.] In Boteler v. Roy, supra, this language is used: “The
Respondent contends that “if it be vice in the plaintiff’s instructions to employ the word ‘substantial,’ they cannot be heard to complain on that ground for the reason that appellants have adopted the same theory in their instructions.” Respondent misconceives appellants’ argument which in fact is based upon an admission that substantial compliance is sufficient to support a recovery, as we have shown, and it
For the error in plaintiff’s instructions, the judgment is reversed and the cause remanded.