J. W. Reedy Elevator & Manufacturing Co. v. Mertz , 107 Mo. App. 28 ( 1904 )

ELLISON, J.

Plaintiff brought this action for the contract price of a passenger elevator which it furnished and put into defendants’ building in the city of Sedalia. Defendants made claim that the elevator did not meet the terms of the contract and was wholly useless to them. They also set up a counterclaim arising out of expense in getting the building ready for installing the elevator,, etc. The judgment in the trial court was against the plaintiff and in favor of defendants on the counterclaim in the sum of two hundred and sixty dollars. Plaintiff thereupon perfected an appeal to this court.

Each party to the controversy has presented a lengthy statement, involving much that does mot concern the merits of the controversy at its present stage. These statements disclose a wide difference between them as to matters said to be of record, as well as other matters not necessary to a disposition of the appeal. Defendants point out the failure of plaintiff to except to the action of the court on the instructions, as shown by its abstract. Plaintiff then, in a “reply to defendants’ counter abstract and brief,” cites the bill of exceptions itself to show that it did except to the rulings of the court on the instructions. But the appeal is by what is known-as the short'form and we have no access to the bill of exceptions. It is especially provided by section 813, Revised Statutes 1899, that if the appellant is dissatisfied with the respondents ’ additional abstract he shall specify his objections thereto-, in writing, and file the saíne with the- clerk of the appellate court, and thereupon the clerk shall order a certified transcript of the part of the record in dispute. No such order was asked of the clerk and we must take the abstract made by plaintiff as we find it.

Bnt passing that by and looking into the objection to the instructions given by the court of its own motion, we find that they are not subject to criticism. The written contract contained the following provision:

“We will furnish one of our improved combined operating and automatic valves, constructed expressly for high speed elevator service. The valves are so balanced that- but a slight power is required to operate them. The movable parts of the valves where they come in contact with the water are made of solid brass, and in opening and closing they receive and discharge the water through graduated openings, thus avoiding shock and jar. The inward and outward flow of the water through the operating valve is regulated by the operator in the cab.”

The elevator was one which is operated by water . power and in the instance in controversy was to be connected' with the waterworks of Sedalia. The principal instruction submitted to the jury whether the words, “thus avoiding shock and jar,” in the portion of the contract just quoted, referred to the city water pipes and machinery connecting with the elevator, or to the jarring of passengers in a sudden movement of the elevator. We think it was proper for the court to submit the question to the jury. The evidence disclosed that the water company when approached for power with which to operate the elevator, raised the objection that it would result in jarring the water pipes and produce what is termed “water hammer,” or “shock and jar;” and the device mentioned in the contract was then brought forward as a preventive of such trouble. When the attachment was made and the operation of the elevator was begun, it was discovered that the injury and danger to the water pipes from water hammer or shock were such as to compel the water company to refuse to supply power. It appears that litigation then arose with the water company by mandatory injunctive process to force it to supply the necessary water, the result finally being that no permanent injunction was obtained.

In view then of plaintiff’s contention that these words of the contract referred to shock and jar of the passengers, we are satisfied that the contract was uncertain and equivocal of meaning and that it was proper for the court to admit the evidence on that head to show the situation of the parties and the circumstances surrounding the transaction; and then submit to the jury what was intended by the disputed expression; directing them, that if they believed it referred to the water pipes and' machinery, to find for defendants; but that if it referred to the elevator itself, then to find for plaintiff. Wilcox v. Baer, 85 Mo. App. 587; Deutmann v. Kilpatrick, 46 Mo. App. 624; Blanke v. Bunnerman, 67 Mo. App. 591; Ellis v. Harrison, 104 Mo. 270; Carr v. Lackland, 112 Mo. 442.

There were many other objections made to the judgment which we regard as not of sufficient substance to justify a reversal of the judgment. But aside from this, the plaintiff is in no situation to complain, since it appears from both the original and subsequent abstract that there was no exception taken to overruling the motion for new trial.

The judgment is affirmed.

All concur.