Medlin v. Brooks

Scott, J., delivered the opinion of the court. This was an action of assumpsit, brought by Brooks and Kavanaugh, against Medlin and Anderson, in which the plaintiffs recovered $212, 12 1-2 damages. After an unsuccessful application for a new trial, the defendants brought the cause here by appeal. Medlin and Anderson, the defendants below, contracted with the county of Platte to build the foundation of a court house for said county : it was agreed that the work should be done with stone j and the face of the wall entirely around the house neatly hammered, and placed in the alternate ranges, of one thickness, as near as the quality of the stone would permit. Medlin & Anderson underlet the contract to Brooks & Kavanaugh, they stipulating to perform the work with the exception of the steps and door-sills, in conformity to the conditions of a bond executed by Medlin & Anderson to the county of Platte, for the performance of the same. It does not appear expressly although it may be inferred, that Brooks & Kavanaugh undertook the work at the same price that Medlin & Anderson were entitled to receive for the same from the county of Platte. After the work had progressed apace, the superintendent of the county interfered, and told the undertakers that the stone they had dressed for corners would hardly do for ashlers, and those they had dressed for ashlers would not do at all. Brooks & Kavanaugh complained to the superintendent that he exacted better work than they had undertaken to do. The superintendent advised them to abandon the work, as it could not be done for the price at which it was undertaken. Kavanaugh, when he informed the superintendent that the county court had intimated that he should have additional compensation, was advised by that officer not to look to that source for relief. A witness testified that he assisted in the performance of the work: while so employed the superintendent in= formed one of the plaintiffs (Brooks) that he would not receive the work unless it should be better done than even the corners had been. The corners were built of cut stone ; some of the stone was hammered and shown to the superintendent, and he declared he would not receive it if it were put up 5 the stone shown to the superintendent was [110] neatly hammered. Brooks then directed the witness to quit work, that his contract did not require him to do the work in the manner required by the superintendent, and that it could not be done as required, for the price at which it was undertaken. The witness ceased work accordingly, and informed Medlin, one of the defendants, that he had done so in consequence of the command of Brooks, who communicated to Medlin the cause of his abandoning the undertaking. Medlin requested the witness to hold on, that he would go and see Kavanaugh, another of the plaintiffs; he returned in a short time, and directed the witness and another workman to go on and do the work, as it had been done before they were interrupted by Bi’ooks. Witness heard Medlin say to Brooks, at the time he was directed to go on with the work, that he would recover pay for the extra work, or he would spend the last ox he had. Kavanaugh circulated for the purpose of obtaining signatures, a petition to the county court, for additional compensation. Some evidence was introduced conducing to show that there was a difference between hammered and cut stone, the latter being more costly than the former, requiring more time and labor. Others denied that there was any difference, and were of opinion that the work performed by the plaintiffs would not be considered as neatly hammered work. The controversy seems to have arisen from a difference in opinion among mechanics, as to what constituted hammered and cut stone work. The plaintiffs paid to defendants the contract price for the work. The court, on motion, struck out the third plea of the defendants, which in substance, set up for the defence, that the several causes of action in the declaration mentioned, accrued to the plaintifis for the work and labor, care and diligence of the said plaintiffs, in and about the building of a certain court house for the county of Platte. Amongst other instructions given at the instance of the plaintiffs, were the following: ■ If the jury find from the testimony that the work was received by the defendants in execution and discharge of the agreement, they must find for the plaintiffs. If they find there was additional, and better work than the contract called for, with the knowledge and consent of the defendants, and with the knowledge that the same would cost more than the contract price, and without any special agreement what should be paid therefor, plaintiffs are entitled for such work what it is reasonably worth. As to the propriety of the action of the court in striking out the [111] third plea of the defendants, it cannot be maintained that the plea was a sufficient bar to the action. The plea would clearly have been bad on demurrer. It is only to be regretted that the court permitted so anomalous a mode to be employed, in order to get rid of it. When the defect in the plea is such, that it' cannot be reached by a demurrer, the court should not suffer a party to avail himself' of it, by a motion to strike out. Such a practice was pointedly condemned by this court in the case of Snowden vs. McDaniel, 7 Mo. Rep. 313; its inconvenience and departure from principle were then exposed, and it is to be hoped that such a practice will not longer be tolerated. We cannot but admire the patience of that court, that would permit counsel a second time to raise objections to a plea, by a motion to strike out, after the same objections had been disposed of on a demurrer. This court has held, that after a demurrer to a declaration has been overruled, a motion in arrest of judgment for a defect in the declaration would not lie. So we suppose that after a demurrer to a plea is overruled, the court will not suffer its sufficiency to be again questioned, by a motion to strike out. That a court permitted this to be done, would not be error; but we remark upon it, because it is a departure from all correct practice, encumbers the record with useless matter, and causes unnecessary delay in the administration of justice. As the evidence was not very clear, and the jurors were the proper .judges of its weight, the court would have been loth to interfere with the verdict rendered in this cause, could it be satisfied that it was not induced by the erroneous instructions of the circuit court. The propriety of some of the instructions cannot be maintained. The jury was instructed that if they believe from the testimony in the cause that the work was received by the defendants in execution and discharge of the agreement, they must find for the plaintiffs. It is only necessary to state the proposition in connexion with the. facts preserved in the record, in order to its refutation. The defendants paid the plaintiffs the agreed price for the work. The controversy was respecting additional compensation; and because the work was received by those for whom it was intended, the instruction'assumes as a consequence, that the plaintiffs promised to give additional compensation, although they had given all that they had received themselves, and had no other interest in the matter, than that their liability to the county should be discharged. Surely if the instruction contained the law, the defendants may have an action against the county, and recover the amount} to the payment of which, they have been subjected by this action. There is nothing in the record to qualify this instruction. The other [112] instructions do not remove the objection arising from the generality of its terms. If it be said that it was given to meet the objection, that the work .was not done in time, this does not appear from any thing contained in the other instructions. Instructions should not be so given, as to leave the jury to conjecture their meaning, when that meaning is contrary to their obvious import. The second instruction above set forth, is not freed from objections. If it is considered in connection with the fact that the plaintiffs undertook to perform the work, in the same manner that the defendants had stipulated to do it, where is the equity or justice in subjecting them to the charge for additional compensation, without a promise, express or implied. The law, under the circumstances, will not imply a promise by them. It was no benefit to them. They were under no obligation to do it. The condition of their bond would not have been violated by an omission to do the work, for the instruction assumes that it was additional or extra work. If it was such, Medlin & Anderson were under no obligation to perform it. A promise to pay for the work might have, wi|jh greater propriety, been implied against the superintendent. It was done with his consent, and with a knowledge that it would cost more than the contract price. Why not as well raise a promise against him, for it was through him, that the injustice, if any, was done. Implied promises are such as reason and justice dictate, and which, therefore, the law presumes that every man undertakes to perform. Is it a dictate of reason or justice, that the plaintiffs should pay for the additional work, when it was in no manner of benefit to them, and when they were under no obligation to do it? Judgment reversed.