172 Mo. App. 680 | Mo. Ct. App. | 1913
This is a suit on quantum meruit for the value of certain window and door screens sold and delivered-to defendant. Plaintiff recovered and defendant prosecutes the appeal.
But two questions are presented for consideration: First, it is urged plaintiff’s instruction is insufficient in that it authorizes a finding without covering the whole cause; and, second, that there is no evidence tending to show the reasonable value of the screens sued for.
It appears plaintiff entered into a contract in writing with defendant whereby it agreed to install certain metal window and door screens in his residence situate in the city of St. Louis, for $260. After-wards, about the middle of May, plaintiff installed the screens and defendant retained them, though he complained several times that they were not in all respects in accordance with the contract. • Plaintiff sent its workmen on two or three occasions to defendant’s residence and readjusted the screens, until, according to its evidence, they were finally made perfect in all respects. It appears that defendant retained the screens
By his answer defendant first entered a'general denial, and then specially pleads that the screens were not constructed and installed in accordance with the contract and were of no value whatever. This defense was interposed as a complete bar to plaintiff’s right of recovery, and the answer claims nothing by way of counterclaim or recoupment for damages or by way of diminishing plaintiff’s recovery as for a partial' failure of consideration.
The record is replete with evidence tending to prove the screens conformed in all respects to the contract and there is ample evidence, too, on the part of defendant to the contrary. However, it appears without dispute that the screens were installed by plaintiff in defendant’s residence about the middle of May and that he retained them and continued to use them for the purposes for which they were installed until after the suit was instituted on November 20th. In this state of the evidence, the case seems to have resolved itself into a controversy as to whether or not defendant accepted, retained and used the screens as a substantial compliance with the contract, notwithstanding they may not have in all respects complied precisely therewith, or rejected them within a reasonable time. On this issue, the court instructed for the plaintiff as follows:
“The court instructs you that even if you shall find and believe from the evidence that the workmanship or material furnished by plaintiff was not in accordance with the contract in some particular, still if you shall find and believe from the evidence that the defendant retained the screens and did not return or*685 offer to return them to plaintiff within a reasonable time after delivery, then the plaintiff is entitled to recover of the defendant the reasonable value of such work and material so furnished by it, notwithstanding the same were not in accordance with said contract as aforesaid; and in such case your verdict should be in favor of the plaintiff for such reasonable value, not exceeding two hundred sixty dollars, together with interest at six per cent from the date of the filing of this suit, namely November 20, 1909.”
The defendant asked, and the court gave, with a modification, the following instruction, on his theory of the case:
“The court instructs -the jury that if they find and believe from the evidence that plaintiff entered into a contract with defendant to furnish and install throughout a residence for a stipulated price, the screens, for the reasonable value of which plaintiff is suing, then it was the duty of plaintiff to substantially comply with the terms of said contract (if such contract was so entered into); and if you further find and believe from the evidence that plaintiff failed to substantially comply with the terms of such contract, and that such failure (if plaintiff did so fail) was not due to any fault or hindrance on the part of the defendant, and if you further find from the evidence that defendant did not accept any part of said screens and did not appropriate any part thereof to his own use and benefit, but within a reasonable time after their delivery to him, notified the plaintiff that he rejected them, then your verdict herein must be for the defendant.
The words italicized in this instruction are those added by the court and constitute its modification to the instruction as requested. Obviously the modification was a proper one in the circumstances of the case. It is clear that these two instructions properly submitted the issue to the jury.
It may be said, too, that in none of the' several instructions requested by defendant at the trial was the matter of diminishing the recovery by allowing damages to him put forward in the case. The proposition is nowhere suggested by defendant in either the answer or instructions- and the defense relied alone upon a complete bar.
There is no pointed and direct evidence as to the reasonable value of the screens, but, notwithstanding this, the jury awarded plaintiff a verdict for $260, or the contract price, together with interest thereon from the date of filing the suit. It is urged the judgment should be reversed for the reason the court should not have submitted the matter of the reasonable value of the screens without evidence thereon. However, the contract whereby plaintiff undertook to manufacture and install the screens for $260 was introduced in evidence and this alone was sufficient for the prima facie purpose of the case. After so much was shown on the part of plaintiff, it was competent for defend
The judgment should be affirmed. It is so ordered.