Bernard v. Mott , 89 Mo. App. 403 ( 1901 )

BOND, J.

This being an action which, from its nature, might have been referred without consent by the court under the authority conferred by our practice act, the findings of the referee upon the evidence are open to review by us in the same manner in which we could review the findings in a suit in equity. Bond v. Finley, 74 Mo. l. c. 25, and cases cited; R. S. 1899, sec. 698. We are satisfied, howeyer, that the preponderance of the evidence supports the finding of the referee that there was a contract between defendants and plaintiff’s intestate, Mackie, for the completion of four partially-constructed buildings, which contract embraced by subsequent agreement the doing of certain extra work. We, therefore, rule against the contention of appellants that there was no evidence of the contract sued on.

Neither are appellants in a position to question the ruling of the court in refusing to strike out the cause of action alleged in the petition upon which the case went to trial, for the sodding and grading of the lots.. It is true appellants filed their bill of exceptions to the adverse ruling of the court on this motion, but they subsequently filed an answer to the petition as a whole. This was a waiver of their right to ask for a review in this court of the ruling on the motion to strike out. Liese v. Meyer, 143 Mo. 547. By answering over, in the eye of the law, they entered an appearance to all the causes of action alleged in the petition, whether they were mere matters of amendment proper, or embraced substantially different causes of action. This, however, did not prevent appellants from making any and all defenses to which the allegations of the amended petition laid it open. If the new matter contained therein is merely the different statement of a previously alleged cause of action, it was only an amendment thereof, and relates back to the time of the bringing of the suit. On the other hand, if the new matter consisted of a distinct cause of action substantially different from any hitherto pleaded, it did not relate back to the commencement of the suit, but is open to any and all defenses which attached at the time it was first alleged. Buel v. St. Louis Transfer Co., 45 Mo. 562; Lilly v. Tobbein, 103 Mo. l. c. 480; Baker v. Railroad, 34 Mo. App. l. c. 113. By answering, the pleader waives the issuance of process and enters his appearanee, but he does not thereby convert the statement of a new cause of action into a mere amendment of a former. So in the case at bar, appellants have appeared to all the causes of action alleged in the last amended petition, but this does not disable them from urging the defense of the statute of limitations to any which were a fresh suit on a new cause of action when they appeared by answer.

The allegation of a cause of action for sodding and grading the lots appears from the record never to have been relied upon until the fifteenth of December, 1899, or more than five years after the work in question had been performed and a cause of action had arisen therefor. It constituted a distinct and separate ground for recovery: it was not an amendment of another item or charge for extra work in the account therefor filed by respondent, but was an isolated transaction wholly unconnected with anything previously alleged, and if it was the purpose of the contractor to present a demand therefor, he should have done so within the time prescribed by the statute of limitations pleaded in the answer. We think the referee erred in basing any allowance against appellants for this demand, and that the exceptions, therefore, should have been sustained by the learned circuit judge.

Neither are we able to concur with the referee in declining to give appellants the benefit of a credit of two hundred and ten dollars, paid by them to Van Nort Bros. In support of their right to a credit of this sum, the appellants gave evidence of án account therefor made out in favor of Van Nort Bros, against J. IT. Mackie, dated October 31, 1894, sent to them accompanied by the following written order:

“St. Louis, November 26, 1894.

“Mr. F. W. Mott, 6 North Eighth street:

“Dear Sir: — Please pay to Van Nort Bros, two hundred and ten dollars, for electric fixtures done on your four houses on Elad avenue, and oblige,

“Tours respectfully,

“J. H. Mackie."

It is admitted appellants accepted the foregoing order and paid the amount thereof to Van Nort Bros. This being so, they were unquestionably entitled to receive a credit for that sum unless the contention of respondent is true, that in paying this sum, appellants only paid their own debt for work not embraced in the plans and specifications. In support of this contention, respondents have not called our attention to any evidence whatever. We, therefore, rule that the referee erred in refusing to credit the aforesaid sum to appellants.

It- is by no means clear that appellants are not entitled to a credit for the amounts of the judgments paid by them in favor of Dooly & Lancaster and the Central Mantle Company, but giving the finding of the referee excluding these items as a credit for appellant the benefit of the want of certainty in the testimony bearing upon them, he clearly erred in denying appellants the right to the costs which they were compelled to pay upon these judgments, for the statute expressly provides “and in ease of judgment against the owner or his property upon the lien, he shall be entitled to deduct from any amount due by him to the contractor, the amount of such judgment and costs.” R. S. 1899, sec. 4223.

The referee also embodied in his findings a charge of ten per cent in favor of respondent upon the aggregate cost of all the extra work. The basis for this claim was a statement in plaintiffs petition that such an allowance “is the usual, customary, fair and reasonable commission and profit upon such extra work, and which by custom the owner is obliged to pay to the original contractor.” There is no evidence in this record that appellants were -apprised of any such custom, or contracted with plaintiff’s intestate in view of such uses. The custom, if it «exist at all, relates to a particular class, of which appellants were not members, and, as far as this record shows, was confined to a particular locality; hence, no presumption arises that the parties contracted with reference thereto or made it a part of their agreement. Stafford v. Railroad, 43 Mo. App. l. c. 342; Long Bros. v. J. K. Armsby Co., 43 Mo. App. l. c. 268. We think the. referee erred, therefore, in finding that appellants should pay this sum. It was no part of the cost of the extra work, all of which was an incident of the larger contract out of which the respondent’s intestate may be presumed to have reaped a reasonable profit, which constituted his motive for entering therein and which should not be enhanced by charges in excess of the reasonable value of the extra work done in connection with the performance of such contract.

Unless within five days the respondent will recast his account against appellants, in accordance with the views expressed herein, and file a remittitur of so much of his recovery against appellants as will thus result, the judgment herein will be reversed and the cause remanded; otherwise, it will be affirmed, respondent to pay the costs of this appeal.

All concur.