6 Mo. 444 | Mo. | 1840
Opinion of the Court by
M’Cullough filed his amended bill on the chancery side of the Cooper circuit court, at the November term 1838. The substance of the original bill and answer, together with the disposition, by the circuit court, of the issue first made in that court, may be found in the opinion of this court, contained in 5. vol. Mo. Rep. p. 141. By the amended bill, it was represented that James Huston contracted with the defendants Moore and Porter to do the carpenters work on a certain house, and that after making said contract, the complainant McCullough entered into partnership with said Huston in the execution of said work — that the said work was done and its value amounted to $1189: that after the completion of said work complainant and Huston came to a settlement with Moore and Porter, and it was agreed upon by all the parties aforesaid, that one half of the said sum should be paid to said Huston and the other half to complainant; and it was further agreed, that the sum of three hundred and forty dollars, for which said Moore and Porter held the complainants bond, should be applied to the discharge of complainants half, which sum of three hundred and forty dollars was in consideration of a lot sold by Moore and Porter to complainant; and Moore and Porter executed their note to complainant for the balance. The
Mooz’e & Porter’s answer admits the partnership and the execution of the carpenter’s work: admits the exhibition to them of a bill of items amounting to eleven hundred dollars and upwards, but declares that they complained that the items were too high, and avers that they refused to settle; admits that they paid to Huston one half of the bill presented, and that they agreed to pay to McCullough about two hundred and fifty dollars, making the aggregate of eight hundred and fifty-eight dollars, being as much as the respondents supposed the work to be worth. The answer further denies all indebtedness beyond what has been paid, and charges tnat Huston was fully paid for his work, without inclu- ' ding the note of $340, which they still hold cn McCullough for the consideration of the lot. They agree that if the work should be found to be worth the full sum charged, they are willing, if any balance is still due, that it shall be applied to the payment of this note, and aver their entire readiness to make a title whenever the purchase money is paid, &e.
After the hearing of the testimony, the court decreed a conveyance.
From the bill of exceptions, it appears that complainants moved to suppress the deposition of one Samuel Williams, on the ground that the deponent read from a written deposition which he held in his hands at the time of his examination before the magistrate, and the questions and answers were an exact copy of the former suppressed deposition. On
Thereupon the defendants applied for a continuance, for the want of the testimony of said Williams. Porter’s affidavit was read on the hearing of this motion, which went to show due diligence on his part, the materiality of the testimony, and his expectation that by the next term the deposition could be had. The motion was overruled, and exceptions duly taken.
Testimony was then submitted for the purpose of proving a settlement with said Moore & Porter and complainant, and that it was understood that the amount of said note was paid for in said settlement. Testimony was also offered by defendants conducing to show that no such settlement took place, that Moore & Porter only settled for about eight hundred and fifty-eight dollars, and retained McCullough’s note to abide the result of an admeasurement of the work, and a settlement of the prices in accordance with the contracl.
Defendants also offered to read the deposition of witnesses, who had measured the work done by complainants and ' Pluston, on said house of Moore & Porter, for the purpose of showing that the prices charged in the bill of items presented were too high, and that in the aggregate, they exceeded the customary prices, from two to five hundred dollars, and also testimony to prove that the work was not done in a workmanlike manner, all of which the chancellor refused to hear. To this refusal, defendants objected and saved their exceptions.
The first point insisted on as error, is the suppression of
It is next objected that the court refused to grant a continuance, upon a suitable application. I have examined the affidavit of Porter for a continuance, and he seems to have made out a complete case. If there were any circumstances that induced the court to refuse the continuance, they were perhaps to be found in the fact, that two continuances had been previously made in the same cause, and one of them at ^ instance 0f the same party. But I cannot think that 1 even this indulgence should deprive the party of his legal rights, when his affidavit shows the materiality of the testimony desired, and every degree of diligence that could be expected. The court should have given the party an opportunity of getting his testimony.
The third error assigned, is the exclusion by the court below of all testimony offered in relation to the exorbitance of the charges and the quality of the work. To ascertain the propriety of this decision, we must look into the state of the pleadings, and the issue submitted to the chancellor.
The bill averred a settlement, and that the amount of complainant’s bond had been considered as paid in that settlement. The answer denies any such settlement, admits a settlement to the amount of eight hundred and sixty-five dollars, but avers that the note was still retained to insure against deficiencies and error in the settlement. The only quesfion on this issue is whether there was in fact a settlement to the amount of eleven hundred and ninety-eight dollars, or whether the settlement only was for eight hundred
In relation to the decree on its merits, I think it unnecessary to go into the details of the testimony, as it is clear to my mind that there is no such preponderance against the decree of the chancellor as would justify this court in interfering.
But because the court refused to allow the defendants an opportunity of procuring the testimony of the witness, Williams, I am willing that the judgment be reversed and the cause remanded.
I concur in opinion with Judge Nap-ton that the judgment ought to be reversed for the reason he gives. I also think there was no good cause why the deposition of Williams should have been suppressed. There was certainly evidence to prove that a settlement had been made made, and there was also evidence to prove that no settlement had been made to conclude Moore & Porter. The evidence of the value of the work ought then, in my opinion, to have been received. Moore & Porter were, in my opinion, under no obligation, to see that McCullough received as much from them as Huston; and therefore nothing can, in my opinion, be concluded against them on that account.