29 Mo. App. 291 | Mo. Ct. App. | 1888
delivered the opinion of the court.
This record presents an extraordinary state of facts. The suit purports to be one upon a mechanic’s lien, and was instituted before a justice of the peace against a church corporation, the owner of the property, and two-of its trustees. Before the justice there was a judgment in favor of all the defendants. Upon the trial in the circuit court, by the court without a jury, there was-judgment in favor of the plaintiff and against all the defendants, and also a judgment subjecting the property to a mechanic’s lien. No evidence was introduced even tending to show any liability on part of the defendant trustees, yet the court, at their instance, first declared the law to be, that the plaintiff could not recover against them, and then rendered judgment against them. No lien account was offered in evidence, nor was there any testimony even tending to show that the plaintiff had ever perfected, or attempted to perfect,
It thus appears that, either the record presented to us is very imperfect, of which, however, there is no evidence, or else the judgment against the two trustees, and the judgment of lien against the corporation, is based upon a misconception of the law and evidence, and the result of a mistake. Under this state of facts the judgment necessarily must be reversed.
The only remaining inquiry is, whether there ’ is evidence in the record warranting a general judgment against the corporation. If so, and if the record on that branch of the case is free from error, we can reverse the judgment and render a general judgment against the corporation here, or else remand the cause with directions to enter such judgment in the court below. Rev. Stat., sec. 3776 ; Andrews v. Railroad, 16 Mo. App. 299.
On that branch of the case the evidence was as follows :
The plaintiff made a bid to lay brick in the church building of the defendant corporation at $2.90 per thous- and measurement. He testified that the only measurement known among builders is measurement in the wall. He did lay 38,900 brick by kiln count. When the parties came to settle, a dispute arose among them, the trustees claiming that the plaintiff was to be paid by kiln count, and the plaintiff claiming that he was to be paid by measurement in the wall.
The plaintiff himself states: “We had a dispute over the measurement of the brick. Peters and Wa.hrmann (the trustees) contended that my contract was for brick measured according to kiln count, and I contended that it was according to measurement.” It also appeared in plaintiff’s evidence that he knew another person had bid to do the work at three dollars, kiln count, and that his bid of $2.90 was made in view of this previous bid. A computation shows that $2.90
These being the facts, and the respective contentions of the parties, the plaintiff and the trustees met, each of the parties contending that they were right, and the trustees paid to the plaintiff $112.80, and took from him the following receipt:
“St. Louis, Mo., Sept. 19, 1885.
“ Eeceived pay for brick-work done by kiln count for Mr. Peters, 38,900 at amount one hundred and twelve dollars and eighty cents.
“$112.80. Wm. Eeisenleiter.”'
The present suit is fora balance of $51.09, which is the difference between the brick laid at $2.90, according to their measurement in the ‘wall, and 38,900 brick actually laid as per kiln count.
While the plaintiff stated generally that he made his bid on a measurement basis, he did not claim that he ever delivered the bid to the trustees. It did appear, however, by the uncontradicted evidence of one Eittenbusch, who was called for the defendants, that he took plaintiff’s bid to the trustees and told them that it was ten cents a thousand lower than the three-dollar bid above referred to.
The testimony admits of no doubt but' that the trustees were justified, by the representations of Eittenbusch, to believe, and did honestly believe, that plaintiff’s bid, like the preceding bid, had reference to kiln count. Their testimony on that subject is borne out by the presumption that they would not be likely to award a contract at $4.20 per thousand, when they could have it equally well performed at three dollars. Eittenbusch acted in the matter as plaintiff’s agent and not as theirs. There is nothing to rebut the presumption arising from the face of the receipt, that when they paid to defendant the $112.80, they paid to him all which they honestly believed was due. The case is thus, at least, analogous to Adams v. Helm, 55 Mo. 468, and
It is apparent that, to allow plaintiff to avoid this settlement and sue for the balance he claims, is to sanction a proceeding, the good faith of which is, to say the least, doubtful, and which finds no support in any equitable considerations, as it is not pretended that the work performed by him was worth more than he was actually paid for it.
The only proper disposition to be madé of the case, under these circumstances, is to reverse the judgment without remanding the cause.
Judgment reversed.