31 Mo. 59 | Mo. | 1860
delivered the opinion of the court.
This was an action to recover damages from the defendant Fulton for failing to build a house for the plaintiff, Stewart, according to the terms of a contract, by which the plaintiff alleges he was injured. The house was a dwelling built on a lot of the plaintiff’s in St. Louis, and after it was completed it was occupied by him. Judgment was rendered for defendant.
At the instance of the defendant, amongst others, the coui’t gave the following instruction: “ If the jury believe from the evidence that the plaintiff either by himself, or his wife, thereto authorized, accepted the building in question, and received the same, then the plaintiff is debarred from claiming any damages for any noncompliance by defendant with the original agreement, unless the fact appear that the defect in the work with noncompliance with the contract by the defendant could not be or was not ascertained at the time of the acceptance of the building.”
The two last instructions given for the defendant were calculated to mislead the jury, and were not warranted by the evidence, which showed that Mrs. Stewart did not interfere with nor give any directions in relation to the matter out of which this controversy has arisen.
Reversed and remanded.