Arthur Fritsch Foundry & Machine Co. v. Goodwin Manufacturing Co.

Í. Contract, Special: NON-COMPLIANCE: LIABILITY ON GENERAL ASSUMPSIT. Where machinery or other articles are furnished by one party to another under a special contract, and are retained by the party, although such machinery does not comply with the contract requirements, he will be liable for its value to him, less the damages resulting from its failure to fill the contract specifications. 2. -: JUDGMENT IN A FORMER SUIT CONCLUSIVE, WHEN. A judgment for defendant in an action on a special contract for machinery built for defendant, the petition in which (answer being but a general denial) set out the contract, performance by plaintiff, and non-payment by defendant, will not preclude the plaintiff from instituting a subsequent suit on the implied contract of defendant to compel him to pay the reasonable value of such machinery, the same having been retained by him. 3. -: NOT THE SAME CAUSE OF ACTION. The first suit was on an express contract, the present suit is on the contract implied by law that a party who accepts and retains a thing of value will pay what it is reasonably worth; the contracts are different and the causes of action arising upon them, separate and distinct. 4. -: -- — -: RES AD JUDICATA. A judgment of a court of competent jurisdiction upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties, but there must be no uncertainty as to the question being litigated in the last suit being precisely the same as was litigated in the former suit.

Appeal from St. Louis City Circuit Court. — How. D. D. Fisher, Judge. STATEMENT. After preliminaries, the petition proceeds as follows : “Plaintiff, for cause of action, states that in the latter part of the year 1900 and early part of the year 1901, it built, furnished and delivered to the defendant, at the special instance and request of the. defendant, ‘one hydraulic press, one hydraulic pump and one elevator,’ which said machinery was valuable to the defendant, and which the defendant received and accepted; that said machinery was of the reasonable value of thirty-three hundred dollars. That, though often requested, the defendant has neglected and refused to pay the plaintiff for said machinery and now refuses to pay the plaintiff therefor to plaintiff’s damage in the sum of thirty-three hundred dollars.” The answer was a general denial and a plea of estoppel by a former adjudication, as follows: “And for a second and further defense, defendant says that at the time of the commencement of this action there was another action pending in this State, to-wit: In the circuit court of the city of St. Louis, in division number one, between this plaintiff and defendant, being cause No. 20428, instituted to the April term of the honorable court in the year 1901, for the same cause of action set forth in the petition herein; that the same was tried before a jury on the tenth and eleventh-days of February, 1902, and : verdict was rendered in favor of this defendant; that the plaintiff filed its motion for a new trial therein, which was overruled by the court, and thereupon the plaintiff took an appeal to the St. Louis Court of Appeals, where said action is now pending and undetermined; that said action is a suit upon the same cause of action set forth in the petition herein, and for the recovery of the contract price of •said machinery. “And for another and third defense, defendant says, that heretofore, to-wit, on the sixteenth day of March, 1901, plaintiff brought an action against this defendant in the .circuit court of the city of St. Louis, Missouri, a court having jurisdiction of the parties plaintiff and defendant and of the subject-matter of said cause of action, said court being a court of general jurisdiction, for same cause of action as that set forth in the petition of plaintiff herein; and'in said action, judgment was duly rendered for this defendant on the eleventh day of February, 1902. That said judgment has been made final by the dismissal of said appeal by the St. Louis Court of Appeals this eleventh day of November, 1902. “"Wherefore, having fully answered, defendant asks to go hence with its costs. ’ ’ The reply was a general denial. Plaintiff introduced the following evidence: ‘ ‘ St. Louis, August 1, 1900. “Goodwin Manufacturing Co., City. “Gentlemen: We propose to build, furnish, deliver and erect one hydraulic press, one hydraulic pump, one elevator and a set of cutting knives for the sum of thirty-five hundred dollars. “You are to furnish ail foundations and do all necessary carpenter work for the machinery. ‘ ‘ Respectfully yours, “Arthur Fritsch Fdy. & Mci-i. Co., " Arthur Fritsch, Prest. “All the machinery is to be built in strict accordance with the specifications submitted to you of which we have a copy, and the change or addition of lining plunger with copper, and that the patterns are to be your property and delivered fi> you when the work is. completed. “Accepted as above. ‘ ‘ Goodwin Mfg. Co. “Geo. F. Tower, Jr., Prest.” Plaintiff also introduced in evidence the specifications referred to in the foregoing contract, and evidence that the specifications were modified by mutua] agreement after the contract had been signed; evidence that the hydraulic press and pump had been constructed, furnished and set up in defendant’s establishment; that the elevator was also furnished but was not set up for the reason that Tower, defendant’s president, concluded after' it was furnished that its. use could be dispensed -with; that the knives were not furnished for the reason that Tower concluded not to use them; evidence that the hydraulic press was worth from $3,500 to $4,000, and the elevator $15. Defendant introduced evidence showing that plaintiff, on the sixteenth day of March, 1901, brought suit against the defendant on the foregoing contract for the recovery of the contract price ($3,500) for machinery, alleging that it had in every particular performed all the conditions of the said contract, but that defendant had failed to perform the conditions thereof on its part by neglecting and refusing to pay the contract price of $3,500 for said machinery. The answer was a general denial. The plaintiff’s evidence on the former trial, in respect to the contract, its modifications and the furnishing of the machinery agreed to'be furnished, was substantially the same as on the trial of the present case, but it offered no’ evidence of the value of the machinery. The evidence of defendant, if any was adduced, is uot contained in the present record. The instructions were based upon the pleadings, and plaintiff was held to prove the contract as alleged, its stipulations and their modifications as alleged, and to prove strict performance on its part of the conditions of the contract as modified. One of the specifications required the plaintiff to set up the machinery in eight weeks. In respect to this agreement the court, on the part of the defendant, instructed the jury as follows: “The court instructs you that if the machine in controversy was not completed within eight weeks from August 1, 1900, and the defendant did not by its conduct cause such delay, and did not consent thereto, then your verdict must be for the defendant on the first count.” Another specification required the press to stand a pressure of four hundred pounds to the square inch. In respect to this specification, the court instructed the jury for defendant as follows: “If you believe from the evidence that after the erection of the hydraulic press that the same would not stand a pressure of four hundred pounds to the square inch when distributed on the surface of the carriage, a space five feet by seven feet, then your verdict must be for the defendant on the first count.” In regard to the alleged modifications of the contract, the court instructed the jury on th,e part of the defendant as follows: “The court instructs the jury that the, plaintiff departed from the original contract in the following particulars: That the cylinder was bored to less than nineteen inches; that the upright or tie-bars were less than eight in number; that there were two plungers of equal size, instead of one large plunger and one small or high pressure plunger; that the knives to cut the cake into suitable sizes were not delivered; and that the elevator was not erected ready for the defendant’s belting. “Now, therefore, if you believe from the evidence that the defendant did not agree to any one of said changes, then your verdict must be for the defendant on the first count. ” There was a verdict and judgment for the defendant from which the plaintiff appealed to this court. The appeal, on the motion of defendant, was dismissed. This was all the evidence. On motion of defendant the court, in the present cause, instructed the jury-as follows: “The jury is instructed that under the pleadings and all of the evidence, the plaintiff is not entitled to recover. ” The jury returned a verdict for defendant. After an unavailing-motion for new trial, plaintiff appealed. (1) “ ‘The established rule extracted and deduced from all the cases is, that where a party fails to perform his work, according to the stipulations of his agreement,' he can not recover on the special contract; but if the services rendered by him or the materials furnished are valuable to the other party, and are accepted by such other party, then he would be liable to pay the actual value of the work performed or materials furnished, not exceeding the contract price, after deducting for any damage which had resulted from a breach of the agreement.’ ' Eyerman v. Mt. Sinai Cemetery Association, 61 Mo. 491. The principle upon which this rule is based is so fair, just and equitable that while at first its application was limited to a certain class of contracts, it has now become in this State a rule of general application to all contracts where it can be applied without doing the defendant injustice. Moore v. G-aus Mfg. Co., 113 Mo. 98; Halpin Mfg. Co. v. School District, 54 Mo. App. 371. So far as our decisions go the only exception perhaps thus far developed are contracts for labor for a specified term.” • Keith v. Ridge, 146 Mo. 97; Marsh v. Richards, 29 Mo. 105; Tates v. Ballentine, 56 Mo. 535; Dempsey v. Lawson, 76 Mo. App.- 526; West v. Freeman, 76 Mo. App. 101; Squire v. Brewing Co., 90 Mo. App. 467. (2) “To make matters res adjudicata there must bé a concurrence of the four conditions, following: Identity of the thing sued for, identity of the cause of action, identity of persons and parties to the action, identity to the quality of the persons for or against whom the claim is made. ’ ’ State v. Hollinshead, 83 Mo. App. 682; Winham v. Kline, 77 Mo. App. 46; Garland'v. Smith, 164 Mo. 22. (1) Where a party enters into a contract for the sale and delivery of property at a stipulated price, the contract being entire, a full performance on his part is a condition precedent to a right of action for the price of any part of the property delivered. Bersch v. Sander, 37 Mo. 104; Wagner v. Electric Co., 82 Mo. App. 299; Halpin v. Manny, 33 Mo. App. 388. (2) A judgment not appealed from is conclusive against a second suit for the same cause of action. And it is immaterial what the form of action was. Railroad v. Traube, 59 Mo. 355; Donald v. Wright, 147 Mo. 639; Hermann v. Schwartz, 59 Mo, App. 649; Koenig v. Morrison, 44 Mo. App. 411; Gren v. Yon der Ahe, 36 Mo. App. 394. (3) A single cause of action can not be split in order that separate suits may be brought for the various parts of what constitutes but one demand. Bank v. Tracy, 141 Mo. 252.