Lewis v. Slack

Philips, P. J. No rule of law is better settled in this state than that, in a case like this, where the petition is founded on the contract, the plaintiff cannot recover judgment as on a quantum meruit. Eyerman v. Cemetery Ass’n, 61 Mo. 489. It is unnecessary to multiply authorities on this point, or to discuss the wisdom of the rule. It is enough to say that it is the well-settled law of this state, as announced by the Supreme Court, and we are bound by it. The petition, in this case, is predicated on the contract, and avers the performance thereof by the plaintiff. The answer denied this fact. And the defendant’s evidence entitled him to go to the jury on this distinct issue. The court refused to so instruct the jury. On the contrary, the court, in direct terms, authorized the jury to find for the plaintiff, as on a quantum meruit. In this the court erred, and its judgment must be reversed. The contract also provides that for any slight changes made in the construction of the interior of the house, the plaintiff may be entitled to pay, if the cost of the change or alteration exceeds the construction according to the plans and specifications. But it further provides that the sum to be so paid shall be “in proportion to the contract price for like work.” So that no quantum meruit, in this action, can be allowed for such slight change, as the amount to be charged therefor is to be regulated and ascertained by its relation to the like work under the contract. I. The appellant assigns for error the action of [130] the trial court in permitting the witness, Owens, to read to the jury a memorandum made by him respecting some examination of the building made by him as an expert. As this evidence is not set out in the abstract of the record furnished by the appellant, in conformity with the rules of this court, we cannot pass on this question. It is given by counsel merely in the form of a statement by him, and not by setting out the evidence as it occurred at the trial. II. It is also assigned for error that the court instructed the jury that under the contract of employment between the architect and the defendant, the architect “had a right to receive the money from her, and pay the same out to laborers, material men, and sub-contractors, and to supervise the letting of sub-contracts and employment of men.” I am of opinion that the instruction in this form should not have been given. I discover nothing in the contract which would authorize the architect to take away from the owner the right to pay out her own money. It was the duty of the architect to see, as far as he could, by the exercise of reasonable care and diligence, that the contractor paid off his hands, and paid for the material which went into the building; but it would be going far to say, from the contract, that he could take upon himself to pay whom he pleased, and what he pleased, and then hold the owner of the building therefor. There is nothing in the contract which authorized him to handle the defendant’s money, orbecome the disbursing agent. The defendant’s contract with Lewis obligated her to pay the money to him. It was his contract, and he was the party she was to pay, by the terms of the contract, for the erection of the building, and not the architect, unless it was upon the admission that the architect was the real party in interest, a fact which I presume he would not willingly concede on this trial. As it was the undertaking of the architect to guard his employer against liens, it con [131] cerned him to see that the money paid out was not withheld by the contractor from the payment of laborers and material men; and whether in any payments made by Doane, he was actuated in protecting the interests of his employer, or was acting on his own behalf, as a secret party to the contract, was a question of fact for the jury. It was to give the conduct of this architect the semblance of right, conferred upon him by the defendant, to instruct the jury that he “had the right to receive the money from her.” It, in effect,' withdrew from the jury the issue and question of. the good faith and honesty of this man, in serving his principal. Nor is there, anything in the contract which .authorized him, as the instruction declares, “ to supervise the letting of sub-contracts, and the employment of men.” The contract simply required him to “ superintend the construction of said dwelling, and faithfully serve and perform the duty of architect, agent, and superintendent of said dwelling, and see to it that the same be built in strict conformity to the specifications and plans.” This was the extent of his authority. In other words, the plain meaning of it all is, the architect was to act solely for the owner of the property, to see that the contractor performed his contract according to the plans and specifications. He was not to take upon himself the office of the contractor, to buy materials, hire and discharge hands and workmen, thereby relieving the contractor from his obligation under the contract. For, if the architect should do all this, the owner could not hold the contractor responsible for any defective material or bad workmanship, because her own agent had selected and approved it, and the contractor had no voice in it. The defendant did not contract with the architect to build her house. He was employed by her to see that Lewis built it according to contract, and that she was protected against liens. Instead of the architect so acting in this matter, with fidelity to his employer and .his' trust, the evidence tends to show that [132] he was selecting and furnishing material, employing and paying hands, and acting rather as if it were Ms own contract. And instead of looking solely after the interests of Ms employer, as her agent, he is most active in this prosecution, busy in bringing the suit, and standing by the contractor. The law does not recognize or tolerate such conduct, on the part of an agent, and especially one standing in the relation this architect did to the defendant. III. We see no valid objections to the instructions given by the court on other matters at issue. The judgment of the circuit court is reversed, and the cause remanded for further proceeding, in conformity with this opinion. All concur.