Gallais v. Trinidad Asphalt Manufacturing Co. , 127 Mo. App. 338 ( 1907 )

BLAND, P. J.—1.

Plaintiff testified his name was John B. S. Gallais. On this evidence defendant moved the court, at the close of plaintiff’s case, to instruct the jury that plaintiff could not recover. The refusal of the court to grant this instruction is assigned as error. In support of this point, plaintiff cites in his brief, King v. Clark, 7 Mo. 269; State v. Smith, 31 Mo. 120; and Tower v. Pauly, 51 Mo. App. 75. In King v. Clark the declaration was on a bill of exchange and described it as being drawn by George- A. Cook under the name of G. A. Cook. On the trial plaintiff offered in evidence a bill drawn by G. W. Cook. The court held that the variance was material. The authority of this case is very much weakened by Orme v. Shephard, 7 Mo. 606, in which it is held that “a middle letter between the Christian and surname is no part of the name, consequently its omission, or a mistake in its description, is immaterial.” In State v. Smith, it is held that in an indictment for the fraudulent and felonious uttering, publishing, etc., of a counterfeit bank note, where said note is described specifically, the proof must conform to the allegations. We do not see the bearing of this case on the point in question. The case of Tower v. Pauly holds that the instruction of nonsuit reaches any matter which operates to defeat the action, whether suggested' to or considered by the court at the time or not. Supposedly, this case is cited for the reason defendant, at the close of plaintiff’s case, offered a demurrer to his evidence without stating the grounds therefor. Plaintiff was known to defendant as S. Gallais, and defendant contracted with plaintiff under the name of S. Gallais, and for a breach of his contract was sued by S. Gallais, the identical person with whom he made the contract, and is therefore in no position to assert that S. Gallais is somebody else by proving he had other initials in his Christian name. Even though plaintiff’s name is John B. S. Gallais, yet if he went by the name of S. Gallais and was known by that name, and not by the name of John B. S. Gallais, he can sue and be sued by the name of S. Gallais, especially could he prosecute a suit in that name against a party with whom he had contracted in the same name.

2. Defendant offered to prove that it offered to repair the floor and make it waterproof but plaintiff refused to permit the repairs to be made. The court rejected this evidence. This ruling is assigned as error. Defendant’s guarantee was not that it would construct, a waterproof floor and keep the same waterproof by repairs, as needed, for five years, but that it would construct a waterproof floor and guarantee it to remain waterproof for five years. Repairs were not provided for in the contract, hence defendant had no right to make them without plaintiff’s consent, and its offer to malee them did not relieve it of its liability for a breach of its warranty. And for the reason the warranty was a continuing one, the court did not err in admitting evidence of the condition of the floor at any period within the life of the warranty.

3. The court gave the following instructions for plaintiff:

“1. The jury are instructed that under the terms of the contract between the plaintiffs and defendant the defendant agreed to lay a certain asphalt mastic floor over a wooden floor, in the first story of plaintiff’s building then under construction at Twenty-first and Walnut streets, in the city of .St. Louis, first laying tarred felt and burlap to insulate the mastic from the wood, aggregating sixteen squares, in accordance with plans and specifications, for the sum of $326.80 payable net cash on completion of the work, said asphalt mastic to be 1% inches thick; that defendant guaranteed that said floor when so laid by it would be absolutely waterproof for the period of five years from the date of the completion of the work, provided the foundation of the floor remained intact.

“Therefore, if you find and believe from the evidence that the foundation of the floor remained intact and that within the period of five years from the date of completion of said floor by the defendant it became not absolutely waterproof, plaintiff is entitled to recover, unless you find and believe that said floor became not absolutely waterproof because of the use of said floor by the plaintiff in a manner different from the ordinary and customary usage of said floor in the ordinary course of conducting a business of the kind and character conducted by plaintiff.

“2. In the event that you find for the plaintiff you are instructed that plaintiff is entitled to- recover the difference between the reasonable value of a floor of the kind guaranteed by the defendant and the reasonable value of the floor constructed and delivered by the defendant, and in the event that you find from all the evidence that the floor so delivered by defendant was worth-' less and of no actual value whatsoever, then the plaintiff; is entitled to recover the amount paid to the defendant for said floor, together with interest thereon from the date of the filing of this suit. And if you further find and believe from the evidence that at the time that plaintiff and defendant entered into the contract for the construction and delivery of said floor that defendant knew that plaintiff expected to make use of the basement and space directly beneath the said first floor for the purpose of his business and for the storage of materials necessary and proper for said business, and if you find and believe that any salt which plaintiff may have had stored in said space beneath said first floor for the purpose of his business was damaged or destroyed by reason of said leakage and said failure of said floor to be abso'lutely waterproof, then plaintiff is entitled to recover such a sum as the jury believe to be the reasonable value of such salt which may have been thereby destroyed or damaged in addition to the amount above stated.”

The court amended an instruction asked by defendant and gave it in the following form:

“3. The court iustructs the jury that it was the duty of the plaintiff to reduce the damages as much as possible, and if they find from the evidence that plaintiff could have prevented the loss caused by the wetting of the salt, then you will find only such damages upon this issue as the plaintiff was compelled to suffer after doing everything which he could to lessen or prevent such loss.”

Defendant contends that instruction No. 1, given for plaintiff, is erroneous in that it omitted to submit the question Avhether or no defendant had knowledge of the use to which the floor was to be put. There is no evidence that defendant made any inquiry a.s to the use to be made of the floor. There is evidence, however, that it kneAv the building Avas to be used as a place to manufacture ice cream and that plaintiff wanted a sanitary floor for that purpose. No conclusions are to be drawn from all the evidence other than that defendant knew the purpose for which the building- was being constructed, and also the use to which the floor was to be subjected. But whether this is so or not, the defense interposed by the answer was not that the floor was put to an improper use, or to one not contemplated by the parties to the contract, but that plaintiff was guilty of specific acts of negligence in the manner in which he used the floor in the prosecution of his business of manufacturing ice cream, and that it was plaintiff’s fault that the floor leaked.

4. It is also contended that plaintiff’s instruction on the measure of damages is erroneous, in submitting to the jury to find damages caused by the water leaking through the floor on plaintiff’s salt in the basement, for the reason defendant did not know for what use the basement was to be put. Defendant knew the basement was under the floor and could not have supposed it was not to be used at all. There is no evidence that it was put to an improper, unreasonable or unusual use. The evidence shoAvs the damage to the salt Avas the direct result of the breach of defendant’s warranty, and we think the instruction on the measure of damages, considered in connection with No. 5 given of the court’s own motion, properly and fairly presented the issues in respect to the damage to plaintiff’s salt.

No error appearing in the record, the judgment is affirmed.

All concur.