241 Mo. 112 | Mo. | 1912
— Plaintiffs sue to recover a balance claimed by them to be due from defendant for work done in grading a certain tract of land belonging to defendant lying partly in tke city and partly in the county of St. Louis.
Tke petition is in six counts; before entering on tke trial plaintiffs dismissed tkeir second and fourth counts, and went to trial on tke first, tkird, fiftk and sixtk. At tke close of the evidence on both sides tke court at tke request of defendant g'ave instructions to tke jury to tke effect that as to tke first and tkird counts tke plaintiffs were not entitled to recover, whereupon tke plaintiffs took a nonsuit with leave as to those two counts; tke trial progressed as to tke fiftk and sixtk counts, resulting in a verdict in each for tke plaintiffs; thereupon a judgment was rendered to tke effect as to tke first and tkird counts tke plaintiffs take nothing by tkeir writ, and that as to tke fifth and sixth counts they have and recover of defendant the amounts awarded tke plaintiffs by tke verdicts of tke jury. In due time plaintiffs filed their motion to set aside tke judgment of nonsuit, which motion tke court overruled and tke plaintiffs in due form applied for and obtained an appeal- to this court.
Tke plaintiffs’ complaint here is that tke court erred in giving tke instructions that forced them to a nonsuit on tke first and third counts; no appeal was taken by defendant and no complaint is made by the plaintiffs as to the judgment in so far as it disposes of tke fiftk and sixtk counts.
I. It is contended that this appeal should be dismissed, because, it is said, there is a final judg
The motion to set aside the nonsuit stands in the same relation to that part, of the judgment as a motion for a new trial would stand to the part of the yAR’ ment that is based on the verdict of the jury; the me - tion does not annul the judgment; the appeal that follows is from the judgment, not from the order over
A party cannot appeal from a judgment that is wholly in his favor, one that gives him aril he asks, but he 'may appeal from a judgment that gives him only a part of what he sues for. If the plaintiffs should prevail in this appeal the judgment will be reversed, not only that part relating to the first and third counts, but that part relating to the fifth and sixth also, but the verdicts will stand, there being no appeal in relation to them, and the judgment on them will be reserved to be made a part of the final judgment in the case when all the issues are tried.
■ The judgment rendered by the circuit court in this case fully conforms to the requirement of the statute that there shall be but one final judgment; and if the trial court was correct in its conclusions it is the only judgment it could have rendered. Respondent insists that the appeal should be dismissed for the reason that appellant has failed to bring up parts of the testimony.
Respondent has availed itself of its privilege to file an additional abstract and has also 'filed a statement of facts. It is not made to appear from respondent’s motion to dismiss or its showing in support' thereof that the part of the testimony alleged to have been omitted by appellant is material to the question of law presented to this court for consideration.
The abstracts filed by both parties put this court in possession of sufficient facts to enable us to decide the only real question in the case, that is, whether the trial court was justified in forcing the plaintiffs to a nonsuit on their first and third counts. The motion to dismiss is ovérruled.
The contract called for excavating earth in the high places, hauling and depositing it in the low places, for which plaintiffs were to be paid eighteen cents per cubic yard when the average haul was 1400 feet, and, in addition thereto three-fourths of one cent per cubic yard for every 100 feet of average haul when it exceeded 1400 feet. The main controversy in the case is in reference to the plaintiffs’ claim for that overhaul. When the work was fully completed the engineer in charge made his final estimate showing excavating and grading of 2,053,585 cubic yards at eighteen cents, plus allowance of 260 feet as excess of overhaul, the whole amounting to $409,692.20, which after deducting amounts of previous payments left due plaintiffs $72,497.70. Plaintiffs in their bill rendered claimed that the true overhaul was 506 feet more than the 260 feet allowed by the engineer, which at the contract price showed the amount due the plaintiff to be $77,933.94 in excess of the $72,497.70 balance shown by the engineer’s final estimate.
III. There is no dispute of the fact that the engineer did not estimate the overhaul as' it actually was, but he estimated it on a plan of his own devising which he thought was just. The engineer, who was the defendant’s agent in charge of the work, and under whose direction the contract required the work
It is on those clauses in the contract, particularly the words, “The engineer’s opinion as to the increase of haul is to be binding on both contracting parties,” that the defendant relies for its contention that the engineer’s decision is binding on the plaintiffs, although the overhaul is measured not as it in fact was done, but in a way the engineer thought it might have been done. If we read that clause in connection with the last clause above quoted we have a seeming cpnflict; in one clause it is. said that the engineer’s opinion shall be binding on both contract parties, in the other it is not binding on the defendant if the “certificate be found or. known to be inconsistent with the terms of this agreement or otherwise improperly given.” Does it mean that it is binding on the plaintiffs although it “be found or known to be inconsistent with the terms of this agreement or otherwise improperly given,” but not binding on the defendant? By the clause last quoted there are two grounds on which the defendant may dispute the binding effect of the engineer’s certificate, first that it is “inconsistent with the terms of this agreement,” second, that it was “otherwise improperly given.” "What does that second ground mean? We can see very well how the defendant might anticipate that its own engineer might, make a mistake in his judgment as to the meaning of the contract, but that the defendant should anticipate that its engineer might act “otherwise improperly” in giving the certificate is not so reasonable. Again,
There is nothing in Williams v. Railroad, 153 Mo. 487, to the contrary of what is here said. In that case the contract was: “The work shall be executed under.the direction and supervision of the chief engineer of said railway and his assistants, by whose measurements and calculations the quantities and amounts of the several kinds of work performed under this contract shall be determined, and whose determination shall be conclusive upon the parties, and said chief engineer shall decide every question which can or may arise between the parties relative to the execution thereof, and his decision shall be binding and final upon both parties.” The court said that that was a valid and binding agreement and that “in the absence of fraud, or gross mistake, as would necessarily imply bad faith, the classification and estimates of the chief engineer and his assistants would be conclusive on both parties.” In that case there was-a dispute over the classification of material removed and other points relating to the character of the work done. The court said in reference to the engineer’s estimate as to the character of certain work done: “At most it can only be held to have been an error in the estimation,” There was nothing submitted to the de
In McCormick v. St. Louis, 166 Mo. 315, the contract sued on contained this clause: “To prevent all disputes and litigation, . . . the water commissioner shall, in all cases, determine the amount of the several kinds of work, which are to be paid for under this contract, and he shall decide all questions which may arise relative to the execution of. the contract, on the part of the contractor, and his estimates and decisions shall he final and conclusive.” In that case the plaintiff sought to .recover for certain work done by him under the contract which was not included in the final estimate, but a divided court held that the final estimate was binding on plaintiff and he could not recover. The case really seems to have turned on the plea of account stated and accord and satisfac
In the case at bar the engineer has undertaken to interpret the contract, and when the contract says that the plaintiffs are to have extra three-fourths of a cent per cubic yard for every 100 feet of average haul over 1400 feet, the engineer says it does not mean the actual overhaul, but it means an overhaul that might have been effected with different means and under a different plan of operation. The work could have been done with spades and horse-scrapers, wagons and teams; it was done with steam shovels, engine and cars, on a railroad track erected by plaintiffs for the purpose. The contract does not specify the appliances to be used; the contractor had the right to decide which was the most economical and expeditious manner of doing the work, he was under a heavy penalty to accomplish the work within a given time. Whilst the engineer testified that the plaintiffs “increased the haul themselves,” he does not say or intimate that plaintiffs acted in bad faith in increasing the haul, or that, using the means and appliances that were used, there was any unnecessary increase. Pie said: “I did not measure it the way they hauled it, because I had never given any direction or consent to hauling* it in that way, but simply did not object to it.” One of the engineers of the Pitzman Company was .on the ground every day supervising and directing* the work, Mr. Pitzman himself was there frequently supervising the work, he saw how it was being done and knew the route that was being taken in hauling the material, he was the agent of the defendant to see that the work was done according to the contract, in that respect he was the defendant’s vice-principal, IJn
In a letter to the defendant company touching the point in dispute Mr. Pitzman said: “My entire plan for the work was based on a wagon haul and when the contractors proposed to make the long haul by the use of steam shovel and cars, I changed my plan to accommodate them, but I did not suppose that the company would or could be charged for'the excess of haul in consequence of the change of motive power. To my knowledge no order has been given to the contractors during the progress of the work in consequence of which the length of haul has been increased, provided the hauling had been done by teams, but the use of steam shovels and cars did increase the length of haul. If the length of haul is calculated by carrying all the earth used for filling east of the railroad over the bridge built over the Wabash I am satisfied that the average haul would be increased about 500 feet over and above the haul as stated in my final estimate. My superintendent reported weekly the number of teams, men, steam shovels, engines and graders used on the -work and I am satisfied from my calculations and estimates that John Scott '& Sons after collecting the estimate as submitted will find that their loss on this contract exceeds $50,000, which fact I regret exceedingly, because they have done first-class work, notwithstanding the fact that they were losing money daily. If John Scott & Sons should insist upon the payment of the estimate ma.de by Mr. Russell and you would decline to pay it, they could appeal to the courts, and what the court or jury would decide is, of course, problematic. All I can say is that I have carefully considered every point and given my unbiased opinion.”
The contract says that the engineer’s “opinion as to the increase of haul is to he binding on both con
So far we have discussed this point from the defendant’s testimony alone, but the testimony on the part of the plaintiffs put their case in a stronger light. Their testimony tepded to show that the overhaul was along the shortest route practicable; that both before and1 after the contract was signed they discussed the matter with Mr. Pitzman and explained to him the manner and means they purposed to adopt, and pointed out the general course of the. route. Mr. Pitzman located the bridges that plaintiffs had to build for their railroad track to cross the River Des Peres and assisted them in obtaining a crossing over the Colorado railroad. He knew that they were going to do the work mainly with steam shovels, engine and cars; while the work was in progress he told them that the 'overhaul would be measured as it was actually made; after the work was completed and they came for their final estimate, he told them that he could not cal
IV. We will now consider the plea of accord and satisfaction.
1. By its amended answer the defendant said that on the first day of February, 1904, the plaintiffs were fully aware of all the facts and conditions they now complain of; they had asserted their claim fo,r the overhaul to the defendant’s engineer and to defendant, and had fully discussed the matter; that defendant “in good faith claimed against and to plaintiffs that it was entitled to liquidated damages from plaintiffs as provided in said contract, modifications and supplements, on account of plaintiffs having failed to complete the work agreed by them to be done within the time agreed upon in said contract, modifications and supplements; and plaintiffs and defendants contended concerning said claim of plaintiffs and said claim of defendant;” and that finally on February 1, 1904, defendant “in a spirit of adjustment and compromise tendered to plaintiffs $76.497.70 in full accord and satisfaction” of all claims, and the plaintiffs accepted the same -and gave a receipt in full of all damages.
The amount shown by the engineer’s estimate as due the plaintiffs was $72,497.70, the amount paid plaintiffs was $76,497.70, the $4000 added was an item in previous estimates among orders of plaintiffs supposed to have been paid by defendant for plaintiffs during the progress of the work, but it was discovered that that item had not been paid and therefore it was added to the plaintiffs’ balance; there was, no dispute about that and that it is not claimed as a disputed point is conceded.
3. Defendant refused to pay what it conceded to be due unless plaintiffs would accept the amount as in full satisfaction of all their claim, plaintiffs yielded to the demand and signed the receipt, and defendant now pleads that that was a fair compromise, accord and satisfaction. Plaintiffs in their reply say that defendant told them that unless they accepted the amount tendered on the terms offered it would pay them nothing and they would have to sue, that the
Part payment of a debt is not a discharge of the whole obligation even when the creditor gives a receipt in full. But an exception to that rule is when there is an account between the creditor and debtor sufficiently involved to afford the basis of a fair dispute as to the amount due and after full consideration the creditor yields to the debtor’s view and agrees to accept the amount which the latter concedes to be due as in full satisfaction and gives a receipt in full; it comes under the head of account stated and is binding. If therefore it be conceded that there was ground for a fair dispute as to whether the plaintiffs were entitled to pay for their overhaul, estimated on what it actually was, or were entitled only to so much as the engineer estimated it would have been if done differently, and if the plaintiffs finally yielded the point and agreed to settle and did settle on the theory contended for by defendant, and if there was no other moving influence in the case, then the settlement was binding.
But there was another influential fact in this case according to plaintiffs’ testimony that forced them to this settlement. After the second session of the board
Ordinarily there is nothing wrong in a debtor, dealing with an honestly disputed balance of account, saying to his creditor, This is all I owe you, but I am not willing to pay it to you and then leave you free to sue me for the balance which you claim; I will pay you this only on condition that you accept the amount in full satisfaction of your claim and receipt for .it accordingly. The presumption in such case is that if the creditor is right in his claim the law will give him satisfaction, therefore no wrong is done him, he is free to accept what is offered or go to law with confidence that in the end the law will give him what is right.
But if the debtor should take the occasion to represent to his creditor his financial condition as being such that at the end of thé lawsuit there would be nothing to satisfy the judgment, he would thereby introduce an element of coercion in his offer. The offer then instead of being, take this or take what the law will adjudge to be your due, will be equivalent to take
4. Besides there was, according to the plaintiffs’ reply and their offer of proof, a concealment of available assets of the corporation by the president in his discussion of the subject with the plaintiffs, perhaps not an intentional concealment, but still a failure to disclose an important fact- bearing on the very point then under discussion, that is, the indebtedness of solvent stockholders for their unpaid, or fictitiously paid, stock subscriptions. That was a material fact bearing on the question of fairness of this alleged settlement, and the court erred in rejecting the plaintiffs’ evidence offered.
It is argued that because the representations of the president as to the prospective insolvency of the corporation were true, there was no fraud. But this is not a case of obtaining goods under false pretenses; it is the case of a debtor, professedly able then to pay
The settlement was not a compromise because there was nothing conceded by defendant, it was not an accord and satisfaction because there was no consideration to support it, and it was not a binding settlement if it was obtained under the circumstances above indicated.
The judgment is reversed and the cause remanded to be retried according to the views herein expressed.