155 Mo. App. 588 | Mo. Ct. App. | 1911
By his amended petition upon which this case was tried and in which amended petition the defendants therein are Garrick Building Company, a corporation, Lee Shubert, administrator of the estate of Samuel S. Shubert, deceased, Lee Shubert, individually, and Jacob J. Shubert and C. A. Bird, the' defendants were alleged to have employed plaintiff about the first of January, 1905, to do certain work.', and furnish certain materials for the Garrick Theater-Building, of which it was averred in the amended petition, that defendants Lee Shubert and Samuel S. Shubert' were lessees of the Garrick Building Company, holding the same as sub-tenants of the Garrick-Build-’ ing Company.- It is averred that in pursuance of the employment and contract with defendants, plaintiff, performed the work and furnished materials in accord-' anee with the orders and directions of defendants, and. their duly authorized agents and “for the price and' amount agreed upon'between the plaintiff and defend
The defendant Garrick Building Company for an-' swer filed a general denial. The defendants Jacob J. Shubert, Lee Shubert and C. A. Bird filed their answer, which answer, denying each and. every allegation in the petition and averring that at the commencement of the action Samuel S. Shubert had been , dead for a period of about two years, set out that the fact of the death of Samuel S. Shubert was well known to plaintiff at the time and therefore defendants interposed no answer in regard to Samuel S. Shubert, “but demand of plaintiff to know by wav of reply what said Sam S. Shubert, deceased, had to do with the transactions herein complained of, and also specifically what these defendants had to do in the transactions set out in plaintiff’s petition, as they are not advised thereby.” Further answering, these three defendants set out that the building known as the Garrick Theater is built upon ground formerly held under a leasehold by one Swazey, who built it; that prior to the erection of the theater building or completion thereof, about the 15th of October, 1903, Swazey, as the owner, made a lease or sublease of the premises to Samuel S. Shubert, deceased, and the defendant Lee Shubert; that after the execution of the leasehold and on a date left blank in the answer, Swazey caused a corporation to be organized to take over the lease from himself to the Shuberts, the corporation being organized under the laws of the State of Missouri, and that thereafter and to the
The reply was a general denial.
It will serve no good purpose to set out the testimony in detail. It is sufficient to say that the plaintiff, testifying for himself, said that he had no written contract whatever for doing the wort sued for with anybody, but that on the employment of Jacob J. Shubert and C. A. Bird, two of the defendants, he had done the work sued for. He further testified to the value of the work done and materials furnished; that it had all been done and furnished as set out in his. itemized account and was reasonably worth the charges he had made for it. He testified that he did not know the Garrick Theater Company and that he had made his contract with the defendant Jacob J. Shubert, assuming that he was the agent of Samuel S. and Lee Shubert. He also testified to acts of Jacob J. Shubert, in connection with the doing of the work and superintendence and management of the building and of the fact that it- had not been paid for. Other witnesses testified to facts tending to show that the lessees of the building at the- time the work was done by plaintiff were Samuel S. and Lee Shubert.* There was also evidence tending to show that checks paid to parties working at the building were drawn in payment in the name of Samuel S. and'Lee Shubert and that Jacob J. Shubert had held himself out as their agent. The leases referred to were in evidence as well as an agreement of date April 4, 1904, between the George T. Riddle Real Estate Company and Samuel S. and Lee Shubert, whereby the Real Estate Company consented to the assignment of the lease from Swazey to the Shuberts. There was testimony on the part of plaintiff to the effect that the rent for the theater building during the months of January and February, 1905, when the work was claimed to have been done by plaintiff under his employment by Jacob J. Shubert, was paid to the Garrick Building Company by Samuel S. and Lee Shubert, and while defendants Jacob J. Shubert and C. A. Bird deposed that
The court gave several instructions at the instance of plaintiff and one of its own motion and refused an instruction asked by defendants Lee and Jacob J. Shubert. The jury returned a verdict against Lee Shubert for the full amount sued for and interest, but against, plaintiff and in favor of the defendants Jacob J. Shubert and C. A. Bird, .and judgment followed against defendant Lee Shubert. From this, after duly saving exceptions, that defendant has perfected appeal to this court.
The learned counsel for the appellant very strenuously contend, and with great ability attempt to sustain their contention, that this is an action upon a spe
Counsel argue with very great force, that at the close of plaintiff’s case, the demurrer which was then interposed should have been sustained. However that may be, after that demurrer was overruled, defendants not resting on the demurrer, put in their testimony. That waived the demurrer. Plaintiff introduced testimony in rebuttal, which certainly helped out plaintiff’s case as originally made.
After a careful reading of all the testimony, we hold there was testimony, although conflicting and even slight, sufficient and substantial enough to justify the court in submitting the case to the consideration of the jury. ■ The jury had before it that testimony and on it
The judgment of the circuit court is affirmed.