21 Mo. App. 110 | Mo. Ct. App. | 1886
delivered the opinion of the court.
This action was originally brought before a justice of the peace to enforce a mechanic’s lien for work and labor done and materials furnished in the repair of a house which belonged to the estate of the deceased husband of the defendant, Mrs. Leahy. John Travers, to whom the house had been sold since the repairs were made, was' originally joined as defendant, but he not having been served with process, the suit was dismissed as to him. A trial before the justice resulted in a judgment for the defendant, and the plaintiff appealed to the circuit court.
I. On the trial in the circuit court, the defendant
II. It remains to consider whether the cause was properly submitted to the jury.
The plaintiff gave evidence tending to show that the defendant, Mrs. Leahy, requested him to do certain work upon a certain house, in order to put it in a salable condition; that he did the work as requested; that he presented her a bill therefor, $43.75 of which she paid, leaving the balance sued for unpaid, and that she subsequently promised to pay this balance, but failed so to do. It was admitted by the defendant, by her counsel in open court, that the work was done in a workmanlike manner, and that the prices charged therefor were reasonable. This was his case.
The defendant denied that she ever ordered the doing of the work, or knew that it was being done ; but she testified that she requested the plaintiff to examine the premises and make an estimate of the cost of doing the work; that, pending this examination, the plaintiff entered into a parol agreement with her to purchase the property of her for $1,200, as soon as she could make a good title, giving her six months in which to do so ; that within that time she cleared off the title and tendered him a good deed of the property which he refused, and that he had, in the meantime, done the work for which he sues, without her request or knowledge, and on his own account. This, without further detail, was her defence.
The defendant in his testimony admitted that before he began doing the work he made this parol contract of
The case, thus briefly stated, was submitted to the niry upon the following instructions, the first two given at the request of the plaintiff, the last at the request of the defendant.
“1. The court instructs the jury that if they believe from the evidence that plaintiff did the work and furnished the materials used in the repairs on the house known as number 811 Clinton street, under orders from the defendant Mary Ann Leahy and on her account, and said Mary Ann Leahy has received the benefit of said work and labor and materials furnished, and that she has not paid for the same, although payment having been frequently demanded, then the jury will find for the plaintiff in the sum of $107.80.”
“2. The jury are instructed that, if they believe
“3. The court instructs the jury that, if you believe from the evidence that plaintiff agreed to purchase •of defendant the premises in controversy, and, while said purchase was still incomplete, did the work and labor, and furnished the materials here sued for upon his own account, and that, subsequently, defendant being in a position to do so, offered to complete said purchase by making a transfer of said property upon which said work was done and material furnished to plaintiff, the plaintiff is not entitled to recover in this suit, and you .should so find.”
The giving of the two instructions above quoted, which were requested by the plaintiff, is not complained ■of. The complaint which the defendant makes is that the court refused the two following instructions requested by her:
“1. The jury are instructed that, if you believe from the evidence that, as a condition precedent to the ■doing of the work and the furnishing of the material and labor here sued for, it was agreed between plaintiff .and defendant that the plaintiff was to furnish to • defendant an estimate of said work, material, and labor before doing same, and that he did not so furnish said estimate, then plaintiff is not entitled to recover herein, and you should so find.”
“2. The court instructs the jury that, in order to entitle the plaintiff to recover in this case, it devolves upon him to establish the fact that the work, labor, and material for which he sues was furnished upon a contract with defendant. And that before there can be a contract between two parties the minds of the two parties must come together and agree upon all the terms and conditions of the contract.”
We think that the court did not err in refusing
As to the second of these instructions, the first proposition' contained in it was well enough, but the jury had already been properly directed on that point in the first instruction given for the' plaintiff. The second proposition contained in it states an abstract proposition of law, not irrelevant to the issue, the giving or refusing of which is ordinarily held to be no error. It is sufficient to say that it was not necessary to give it.
III. The contention that, upon the undisputed evidence the defendant was entitled to a verdict and judg
The judgment must be'affirmed.