38 Mo. App. 321 | Mo. Ct. App. | 1889
delivered the opinion of the court.
The plaintiff sued to recover the reasonable value of certain materials furnished, and work done by it, in making improvements in a building, alleged to belong to defendant, and situated in the city of St. Louis. The defendant answered and averred a special contract which the plaintiff had failed to observe, not only as to the work done; but in reference to the character of the
On the trial the defendant objected to the introduction of any evidence because the petition did not state facts sufficient to constitute a cause of action. He also made the additional objection that the petition did not contain an itemized account of the work done and materials furnished, nor was a copy of such account attached to the plaintiff’s petition. His objections were overruled, and he now assigns this action of the court for error. The defendant now claims that the plaintiff failed to prove his cause of action, as alleged, and that this amounted to an absolute failure of proof. For this reason he complains of the plaintiff’s first instruction, and he urges this as a reason why the judgment cannot be upheld. The court refused one instruction asked by the defendant, and he assigns this for error.
The plaintiff in its petition averred in substance that in August, 1887, at the defendant’s request, it erected and furnished for a certain building in St. Louis, and the property of the defendant, the following goods, wares and merchandise, and performed the following labor in reference thereto, viz.: “One steel boiler, fifty inches in diameter, fourteen feet long, containing forty-four, three and one-half inch flues; one steam dome, manhead front and rear, class ‘C,’ three-fourths full front; extension stack and breeching required to connect with permanent flue in the building ; latest
The defendant, in his answer, set up a counter■claim in which he alleged a special contract by which the plaintiff had agreed to furnish and erect in “defendanV$ building” the same materials, and tq perform the same work alleged by the plaintiff in its petition. 'The defendant then averred a non-fulfillment of this ■contract in several particulars, and among them that the boiler furnished by the plaintiff was not made of “Park Bros.’ best flanged steel, specially made for high-grade boiler work,” etc.
The evidence was not set out in full in the bill of exceptions, but the following purports to be the substance of plaintiff’s evidence as to the boiler furnished, viz.: “That said boiler was made by the-Atlas Engine Works of Indianapolis, out of homogeneous steel, which meant all of one kind or quality and without flaws; but whether it was made of Park Bros.’ best flanged steel, the plaintiff did not know positively, but according to the best impression of plaintiff’s foreman, Mr. Reed, who set the boiler, it was of Park Bros. & Co.’s best flanged steel. That the boiler was made by the Atlas
The defendant introduced evidence, tending to prove that the engine furnished was not made • out of Park Bros.’ best flanged steel, and that the plaintiff had failed to do the work in a proper way, and had in several matters failed to furnish the kind of material contracted for; that “the defendant was not the owner of the building and had nothing to do with it or the work, except as the agent of the owners, who were his father and uncle, and that plaintiff knew he was not the owner of the "building. ’ ’
The plaintiff’s evidence in rebuttal tended to show that he had performed the work in a proper way, and that it was a first-class job in every particular; that, at the time the contract was made and the work done, the defendant represented that he was the owner of the building, and that plaintiff knew nothing to the contrary until the trial.
The second assignment of error is an alleged failure of proof in reference to the boiler furnished by the plaintiff. The petition averred that the boiler was made of Park Bros.’ best flanged steel, and the defendant’ s contention is that the plaintiff’s evidence failed to support this allegation, and that this constituted a failure of proof under the statute, and not a simple variance. Section 3702, Revised Statutes, 1879, reads as follows: “ When the allegation of the cause of action or defense, to which proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, but a failure of proof.”
If we admit all that defendant claims as to the probative force of plaintiff’s evidence, yet it is undisputed that the plaintiff did furnish a boiler made of the best flanged steel and entirely suitable for high-grade boiler work. Admit that the steel was not manufactured by Park Bros., would that amount to a failure to prove the plaintiff’s cause of action in its entire scope and meaning? If the proof had shown that the plaintiff had placed an engine in the defendant’s building instead of a boiler, then the case would be within the meaning of the statute. We have many decisions in this state construing and illustrating this statute. When a petition avers the sale of goods, a recovery cannot be had on a state of facts which would constitute a trespass de bonis asportatis. Link v. Vaughn, 17 Mo. 585. If a party sues for obstructing the flow of surface water, he cannot recover for the obstruction of a running stream of water. Field v. Railroad, 76 Mo. 614. In the case of Groll v. Tower, 85 Mo. 249, the plaintiff alleged that
In the case at bar, it cannot be said that there was an absolute failure of proof as to the boiler. If it be granted that the plaintiff’s testimony had no tendency to prove that the boiler was made of Park Bros.’ best flanged steel, yet this condition of the proof would only have presented a case of simple-variance; and, if the defendant on account of it had been surprised, or in any way prejudiced in his defense, it would have presented a good cause for a continuance at the plaintiff’s costs.
The defendant next complains of the plaintiff’s first instruction, because it assumed, that there was some evidence in the case that the boiler was made of Park Bros.’ best flanged steel. The instruction reads as follows: “ The court instructs the jury, that if they believe from the evidence that plaintiff sold and delivered to the defendant the boiler, steam dome, manhead front and rear, extension stack breeching required to connect with permanent flue in the building and improved guages, cocks and valves required for the completing in the .best manner, and set the boiler, and other parts usually set in masonry, in substantial masonry in a manner to secure the best economy of fuel and labor in operation; that the boiler was made of Park Bros.’ best flanged steel, especially made for high-grade boiler work, and that the construction throughout was of - the best class, and that plaintiff removed a wood tank and steam pump, and reset same and furnished necessary fittings therefor, and that plaintiff removed four ash-pit doors to the east side of defendant’s Heine boiler, at the time in defendant’s building, and reconstructed defendant’s return pipes for said Heine boiler, then the jury
It will have to be conceded that the plaintiff introduced no substantial evidence that the boiler furnished by him was made of Park Bros.’ best flanged steel. The only testimony bearing on the subject was that of the plaintiff ’ s foreman. This witness did not say that the boiler -was made of Park Bros.’ best flanged steel, but he said that his impression was to that effect. The impressions of witnesses cannot be received and treated as evidence. Knowledge of a fact by a witness is the only competent evidence. It must also be conceded that the instruction given by the court, and of which the defendant complains, assumes that the plaintiff did introduce some substantial evidence tending to prove that the boiler furnished was made of the best flanged steel, and that the steel was manufactured by Park Bros. This instruction is erroneous, in so far as it assumed that there was evidence tending to prove that the steel, out rof which the boiler was constructed, was made by Park Bros. The error in this instruction calls for a reversal of the judgment, unless it appears that the error complained of was not prejudicial to the defendant’s case. R. S. 1879, sec. 3775.
The plaintiff’s proof is clear, and in fact is undisputed, that the boiler furnished by it was constructed of the best flanged steel, and that the steel was specially made for high-grade boiler work. It also appeared by the evidence that the same kind of steel is manufactured by several firms in the United States, and that this grade of steel was substantially of the Same quality and value. If the boiler that the plaintiff did furnish was equal in value to one manufactured of Park Bros.’ best flanged steel, and was equally suitable for the purpose for which it was used, we are unable to see how the. error in the instruction materially,affected the defendant’s
And lastly the defendant assigns for error the refusal of the court to give the following instruction :
“The court instructs the jury that if they believe from the evidence that Robert and William Mitchell are, and, at the time the contract read in evidence in this case was made, were, the owners of the building on Third street, where this boiler was put in and this work done, and that the defendant notified or informed plaintiff or its agents of that fact before the work was done, or if the plaintiff or its agents or attorneys knew, at the time the work was done, that the defendant was only the agent of Robert and William Mitchell, then their verdict must be for the defendant in this case.”
The defense sought to be interposed by this instruction is inconsistent with the defendant’s answer. The defendant in his answer said : “Plaintiff agreed with defendant to furnish and erect in defendant ’ s bioilding one steel boiler,” etc. The defendant after alleging breaches of the contract concluded as follows : “That, in consequence of such breach of contract, defendant has been injured and damaged in the sum of five hundred dollars, which, with interest and costs, defendant asks judgment against the plaintiff.” The instruction is objectionable in other respects, which it will not be necessary to discuss. We think the court did right in refusing the instruction.
Finding no error in the record, the judgment of the circuit court will be affirmed. All the judges concurring, it is so ordered.