Harrison v. Franklin ( 1907 )

BLAND, P. J.

(after stating the facts). — 1. Instruction numbered 1, given for plaintiff, is so indefinite and so involved as not to furnish the jury any guide to a correct verdict.. It correctly told the jury the price for the work in clearing the right -of way was fixed by the contract of June 3. It left, to the jury to determine how much of the- work on the right of way was completed by defendant and if not fully completed, why it was not fully completed. Defendant was doubtless inadvertently named where plaintiff was intended. But as the evidence shows defendant did complete part of the work, and that a part never was completed by any one, it is not probable the jury discovered the error and made the correct application. If the jury had found why the work was not completed by plaintiff, they would have had to go further and find what the legal consequences were, as the instruction did not tell them what they would be, and if they did not find the legal consequences, the fact that the work was not completed could not have influenced their verdict. A question of law and of fact were thus both submitted to the jury. The jury were also directed to find the number and quality of ties furnished defendant without reference to the supplemental contract, or direction as to when, where or in what condition they were furnished and, in effect, allowed plaintiff the contract price for the ties, irrespective of the evidence showing that the ties had not been delivered or distributed along the right of way, as required by the supplemental contract, which the court, by instruction numbered 2, told the jury was a part and parcel of the contract. They-were also instructed that if they found for plaintiff to allow him six per cent interest from January 1, 1899. It is true, plaintiff testified he demanded payment on that date, and his testimony was not contradicted, yet it was for the jury to find from the evidence when the demand, if made, was made. [Mauerman v. Siemerts, 71 Mo. 101.]

2. On the theory that defendant stopped the work, the second instruction is correct; but it seems to us the case urns tried on an erroneous theory. The petition alleges the work was done under the contract with defendant and alleges performance. The answer specifically denies performance and pleads a counterclaim for money paid plaintiff and for money paid out for completing the clearing of a part of the right of way. The reply alleges as an excuse for non-performance, the stoppage of the work by defendant. The case was tried on the theory that plaintiff had, as far as he had gone with the work, complied with the contract and was prevented from completing the work by defendant. It seems to us there is but one correct theory upon which the case can be properly tried, and that the pleadings admit of an application of this theory, to-wit, for work and labor done at the instance and request of defendant, the contracts, original and supplemental, furnishing the measure for the valuation of the work done. In regard to the uncompleted work, according to the terms of the contract, plaintiff should not recover the full contract price hut what such work was reasonably worth, having regard to the price fixed by the contract. Upon no other theory do we think a just and fair verdict can be obtained. The petition should be amended to show a waiver of time in which the contract shows the work should have been completed, as time was made the essence of the contract. On a retrial of the cause certain errors that were committed at the trial, in regard to the admission of evidence should be avoided. We have reference to the cross-examination of defendant, by which it seems plaintiff attempted to show that he was overreached by defendant in procuring the contract to be made and also in regard to the contents of the written contract. The terms of the contract are unambiguous and do not require the aid of oral testimony for their interpretation.

For the errors herein noted, the judgment is reversed and the cause remanded.

All concur.