33 Mo. App. 343 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This action was commenced before a justice of the peace to collect an account for seventy dollars for work and labor alleged to have been done by the plaintiffs for defendant. The complaint states that the defendant agreed to pay such sum for doing of the work described.
On trial anew in the circuit court, it appeared that one Meisch was a contracter with the defendant for the
The jury, under a proper instruction from the court, found for the plaintiffs in the sum of seventy dollars, and from the judgment entered on this verdict the defendant prosecutes this appeal.
The errors assigned are: (1) That there is no evidence to sustain the allegation that the defendant employed the plaintiffs to build the stairs for him. We have seen from the foregoing statement that this assignment is not well taken. We may add that the evidence for the plaintiffs tended to show that, but for the making of the new contract with one of the plaintiffs, they would have desisted from the work at the time when he directed them so to do.
The second assignment of error is, that Mueller’s promise to pay Yeoman is within the statute oh frauds and void, because not in writing. It is to be observed that the defense of the statute of frauds does not appear to have been made in the trial court in any way, either by a defensive pleading ( which was not strictly required, as this case originated before a justice of the peace), by objections to evidence, or by request for instructions. It cannot, therefore, be raised for the first time on appeal. Scharf v. Klein, 29 Mo. App. 549. But if it could be properly raised, it is clear that it would be unavailing, for the evidence shows an undertaking on the part of the defendant to pay for the work, independently of the previous contract which subsisted between the plaintiff and Meisch, and it equally shows that they went on and completed the work on the faith of this undertaking. The evidence in no sense makes an undertaking collateral to that of Meisch. There was no promise to answer for the debt or default of Meisch
The third assignment of error is that Mueller’s promise was without consideration to sustain it. We fail to see that this defense was raised in any way in the court below, but the above statement of facts clearly shows that there was a consideration, as much so as there can be in any oral contract for work and labor done, — a request to the plaintiffs to go on and finish the work and a compliance with the request on their part.
We are requested, in affirming the judgment in this case, to give damages. This is an action to collect a small bill for work and labor. The plaintiffs have been put to the expense of an appearance by counsel in three successive courts. The defendant’s own testimony shows that his defense is without substantial merit.
The judgment is therefore affirmed with ten per cent, damages.