41 Mo. App. 611 | Mo. Ct. App. | 1890
Lead Opinion
The plaintiff, as an. original contractor, brings this action upon a building contract, to recover a balance alleged to be due thereon, for building a house for Mrs. Haley, one of the defendants, and also seeks to enforce a mechanic’s lien upon the house and lot for the balance claimed to be due. The cause was referred to a member of the bar against the objection of the defendant to try all the issues. He heard the evidence of the parties and filed a report, recommending a judgment in favor of the plaintiff in the sum of two' hundred and'nine dollars and twenty cents, and that the,same should be charged as a mechanic’s lien on the property. Within four days the defendants excepted to this report; their exceptions were overruled; judgment was entered thereon in accordance with its recommendations ; they, within four days, filed a motion for a new trial, and this being overruled, they appeal to this court.
I. The first error which they assign is the action of the court on sending the case to a referee. Waiving the question whether this proposition has been properly
II. Another assignment of error is that the referee erred in permitting the plaintiff to show that the plans and specifications, under which the house was built, were changed before the signature ' of the contract. An examination of the testimony, returned by the referee ■with his report, shows that numerous objections were made to evidence, some of which were sustained and some overruled ; but the record does not show that any of these objections were renewed in a distinct form in the exceptions to the referee’s report. It is a fundamental rule of procedure that exceptions to the admission or the rejection of evidence must be taken in every judicial trial at the time when the evidence is offered and when the ruling upon the objection is made.
It thus appears that nowhere in the record, prior to the entry of judgment, was any distinct exception saved to any distinct item of evidence admitted or excluded. There is, therefore, clearly nothing for review in this court under this head.
III. The next assignment of error which we shall notice is that the court erred in allowing the plaintiff a lien for the old stairs, which were attached to a building separated from the one on which the lien was filed. The court is of opinion that this assignment of error is well taken, bnt as the ¿mount of this non-lienable item was but fifteen dollars, it can be cured by a remittitur.
IY. The next assignment of error which we shall notice is in the form of a proposition, that the plaintiff could secure no lien on the defendant’s property because he failed to file an itemized account, as required by the statute. We find that he filed an itemized account, stating the amount which, by the terms of the contract, was the agreed contract price for the building, to-wit, the sum of thirty-nine hundred and ninety dollars, and also containing eight specific charges for -extras growing out of changes in the contract by the parties thereto, and amounting in the aggregate to eighty-five dollars and thirty cents. We do not see that any objection was taken to this account upon this or any other ground, when it was offered in evidence, either before the referee or in the form of exceptions to the
Y. The last assignment of error presents some difficulty. It is that this is an action on a special contract and that the plaintiff is recovering upon a quantum meruit. There is some difficulty in determining whether this objection has been properly saved for review in this court, growing out of the very general manner in which exceptions to the referee’s report were taken and renewed in the motion for new trial. The motion for new trial contains the usual assignment that the judgment is against the evidence and the weight of the evidence ; and it also assigns, as a reason why a new trial should be granted, that the finding of the referee and the judgment of the court are contrary to the law and the evidence. We assume that, if an action has been commenced on a special contract, and a recovery has been had upon the mere proof of the rendition of services at the instance and request of the defendant, and upon evidence of the reasonable value of such services, the case presented is one where the petition is unsupported by the evidence in its entire scope and meaning, and that, in such a case, there can be no recovery. It is well settled, by numerous decisions in this state, that, where an action is brought upon a special contract, there can be no recovery upon what is called a quanttm, meruit. Eyerman v. Mt. Sinai Cem. Ass'n, 61 Mo. 489; Davis v. Brown, 67 Mo. 313; Lewis v. Slack, 27 Mo. App. 119; Halpin v. Manny, 33 Mo. App. 388; Warson v. McElroy, 33 Mo. App. 553. There is often much difficulty in applying the rule in the case of building contracts, having extensive specifications. The cases which have been before this court
The difficulty with the execution of this contract in strict accordance with its terms, including any subsequent deviations, was, that there was no superintendent. The evidence of both parties shows that Haley and wife undertook- to be their own superintendents. In fact, they began to change the contract by parol agreements with the plaintiff, after he had made the bid and before the contract had been formally signed. A very essential change in the plan of the house was thus made after the plaintiff’s bid was accepted, but before the contract was signed. It consisted in changing the west wall from a nine-inch to a thirteen-inch wall, and, according to the plaintiff’s testimony, it was agreed, in order to keep the work within the bid, to counteract this increase of
The petition counts upon the contract, as in ordinary cases of action upon written contracts, and avers performance according to the terms of the contract. We understand it to be the rule that under an allegation of performance, a waiver may be shown, and that, where the contract, which is the foundation of the action, requires performance to be made in a particular way, it may be shown that the defendant accepted performance in a different way.
The referee, in his report, finds that the contract was changed in respect of eight different matters, of the aggregate value, properly chargeable to the defendants, of eighty-five dollars and thirty cents. He also allows them, on their counter-claims for certain deviations from, the specifications of the contract as executed, .the sum of one hundred and two dollars and ten cents. Giving the defendants credit for the amount which they have paid under the contract, he arrives at the balance due the plaintiff of two hundred and nine dollars and twenty cents. With the exception of the non-lienable item of fifteen dollars, it seems that the referee has worked the matter out as well as it would probably
Rehearing
OPINION ON MOTION FOR REHEARING.
We see no reason for granting the rehearing which is asked for in this cause; but the argument which has been presented to us in support of the motion calls our attention to the recent decision of the supreme court in Rude v. Mitchell, 97 Mo. 365. That case holds that, where the account filed as the-basis of a mechanic’s lien, in a case between the original contractor and the owner, states the whole contract price of the building in one item, it is not the “just and true account” required by the statute, but is worthless as the basis of a lien, and that, where the-builder files such an account, he acquires no lien. This is contrary to what this court has hitherto supposed to be the law on this subject. We have hitherto proceeded upon the idea that,.where the original parties to the
Our conclusion is that the judgment of the circuit court must be reversed, and the cause remanded, with directions to enter judgment for the sum recommended by the referee, and to enter judgment for the defendants in respect of the claim for a mechanic’s lien. It is so ordered.