80 Mo. App. 592 | Mo. Ct. App. | 1899
This suit is for $150 for alleged services of plaintiff as an architect “in making plans and elevations of barroom for Union Station Hotel.” It was begun before a justice and appealed to the circuit court, where plaintiff had judgment, from which defendants appealed to this court.
The errors complained of relate to the instruction given of the court's own motion. So much of the instruction as is necessary to present the points under review, is to wit: “If you believe from the evidence in this case that the plaintiff at the instance and request of the defendants Westerman and Prufrock prepared for them certain plans or sketches for the interior work of a saloon át the Terminal Hotel Building, or accepted such plans or sketches as work done by plaintiff for
It is apparent from the foregoing quotations that only two issues were submitted to the jury, whether or not the drawings sued for were made in pursuance of a contract with defendants, or whether dr not they were accepted, “as work done by plaintiff for them” (defendants). It is objected to the second issue that it was submitted without any evidence and that it referred to the jury the decision of a question of law, in that it left them to decide what was an acceptance of a contract. The first objection is untenable. The testimony of plaintiff tends to show that the plans prepared by him were submitted to defendants, who examined the same and suggested certain changes, which were made. Erom this evidence an inference of acceptance of plaintiff’s services might be drawn. The defect in the instruction (as pointed out in the second objection) is that it failed to tell the jury what facts or circumstances in the evidence would constitute an acceptance or ratification by defendants of the services claimed to have been rendered at their request. It is well settled that if the abandonment of a contract does not rest upon an express agreement, but is the mere legal predicate of specific facts or