author: GANTT, P. J.

text:
    JOHN T. KENNEDY v. LACLEDE GAS LIGHT COMPANY, Appellant.
    Division Two,
    January 4, 1909.
    1. NEGLIGENCE: Master and Servant: Suitable Wagon. A wagon constructed for the purpose of hauling heavy stones, built with a low body about eighteen inches above the ground, its bed extending outward several inches beyond the wheels, is a suitable one on which to load from the side, by use of skids, a reel of cable wires weighing 3000 pounds.
    2. -: -: Reasonably Safe Appliances: Adopted by Laborers. Usually the men engaged in the loading of the 3,000-pound cable reel upon a wagon adopted their own system and determined for themselves how the skids were to be placed and propped. But, even though that were the usual way, yet if the man in charge of the work, with the men assisting him, tried to load the reel, and failing, sent word to the foreman that they needed other skids, and he started to the scene and on the way met other men going for blocking and told them not to get it, but to come on and assist him, and when he reached the place he assumed charge of the work, selected the cross-arms out of which he constructed a skid and other cross-arms which were used as props, and these skids and props broke down and caused the injury, the case is not one in which the master has performed his duty in furnishing to his servants means and appliances, leaving- the use of the appliances and manner of ..performing the work to their judgment. But it is a case in which the foreman, and consequently the master,' took charge of the particular work and chose the appliances and the manner of doing the work, and hence if there was negligence in failing to exercise reasonable care in providing proper appliances, or in the manner in which they were used, it was the master’s negligence. In such case whatever might have been the general custom was beside the point at issue.
    3. -: -: -: Improvised Skid. An improvised skid made out of the cross-arms used on telephone poles, when there is no evidence that other companies engaged in like business had ever adopted such an improvised skid, and no evidence that plaintiff, while he had on former occasions used skids so made in loading cable reels, had ever used such a skid in loading a reel so large as the one which broke down the skid and injured him, is not to be considered such an appliance as is ordinarily used for like purposes by persons engaged in the same kind of business.
    4. -: -: -: Propping Wagon. Whether or not the general foreman used proper care or was negligent in not propping up the wide wagon bed, upon which he directed the men, by use of an improvised skid, to load, from the side, a 3,000-pound cable-wire reel, as was suggested by the assistant foreman should be done, was a question for the jury. The fact that such a wagon was not shown ever before to have tipped and let down the skids, is not sufficient to justify the court, under the circumstances, to refuse to submit to the jury the question of whether the general foreman exercised proper care and caution in attempting to load the heavy reel without propping up the wagon bed, when the bed did in fact tip over and let down the skids and thereby the plaintiff was injured, even though the skids themselves were blocked up but nevertheless broke down under the heavy weight.
    5. -: -: -: Erroneous Evidence: Not Submitted By Instruction. Even though testimony that the wagon usually used by defendant in loading the reel had on the previous day broken down and in consequence defendant secured the wagon in question, was improperly admitted in evidence, no harm resulted to defendant therefrom, if the court refused to submit to the jury the question of whether the wagon used was insufficient.
    Appeal from St. Louis County Circuit Court. — I-Ion. Jno. W. McElhinney, Judge.
    Affir,mei>.

      Seddon & Holland for appellant.
    (1) The court erred in refusing to give, at the close of all the evidence, the peremptory instruction offered by defendant. Brands v. Car C'o., 112 S. W. 511; Forbes v. Dunnavant, 198 Mo. 193; Bradley v. Tea & Coffee(Co., Ill S. W. 919. (2) The court erred in giving instruction 1 offered by plaintiff. (3) The court erred in giving instruction 16 at the instance of plaintiff. (4) The court erred in refusing to give instruction D at the instance of defendant. Forbes v. Dunnavant, 198 Mo. 193. (5) The court erred in refusing to give instruction E offered by defendant. (6) The court erred in refusing to give instruction F offered by defendant. Forbes v. Dunnavant, 198 Mo. 193. (7) The court erred in allowing plaintiff to testify, over the objection of defendant, that the wagon in question was not the regular wagon used by defendant.

      A. B. Taylor for respondent.
    The contention of appellant that because appellant had in its store-house sufficient skids and appliances for the loading of the reel safely on the wagon is futile, whereas in this case the foreman and vice-principal of appellant was present directing the manner and means to be used in the work, and directed the work to be done with the means and appliances used, and in the manner it was being done. Under such circumstances the foreman Gallagher was the vice-principal of defendant in the matter of providing the appliances for this work, in directing the work to be done and in the entire matter of the work. He was present when he was informed that he had better have the bed or apron of the wagon blocked to keep it from tipping; he neglected and refused to do so. When Shevlin sent the men to get the proper skids and supports to do the work, he countermanded the order and said the work should be done with the appliances on hand, and the evidence shows, without substantial dispute, that the disaster came upon respondent directly because the foreman refused to heed admonitions of the danger of doing the work with insufficient appliances. The principle on which this case was tried finds ample support in the settled law. It is a duty inherent in the relation of master and servant that the master is bound to use ordinary care in supplying appliances reasonably safe and suitable for the servant to work with in the discharge of the duties of his service, and also to use such care, in commanding and controlling the work, and to whomsoever, without regard to rank, the master delegates such duty, such person in the discharge or omission to discharge such duties personifies the master — and the master is responsible for his neglect injuring the servant. This is the fundamental relation of master and servant, supported by all respectable authorities, and is consistently the ruling of this court. Bane v. Irwin, 172 Mo. 317; Moore v. Railroad, 71 Mo. 78; Moore v. Railroad, 85 Mo. 394; Sullivan v. Railroad, 107 Mo. 78; O’Mellia v. Railroad, 115 Mo. 218; Poster v. Railroad, 115 Mo. 180; Coontz v. Railroad, 121 Mo-. 659; Donohoe v. Kansas City, 136 Mo-. 6701; Herbert v. Railroad, 116 U. S. 648; Coombs v. Const. Co., 205 Mo. 379. This is no case where the master has performed his duty in furnishing to the servants proper means and appliances, and leaving the use of the appliances, manner of the work, etc., to the judgment of the servants. Here the evidence shows the precise contrary. When the servants wanted the proper appliances, and so mentioned to this vice-principal, he commanded the work to proceed without them. The cases cited by appellant are not relevant to the issues in this case.
   GANTT, P. J.

This action was brought by the plaintiff against the defendant to recover damages on account of personal injuries sustained by him on the 4th of February, 1903, at or near the northeast corner of Broadway and Spruce streets in the city of St. Louis, while plaintiff was in the service o-f the defendant as a laboren engaged in the work of rolling a heavy cable reel upon a wagon for the defendant. The injury necessitated the amputation of the right leg of the plaintiff above the knee.

The petition in substance states that the defendant is, and at the time mentioned was, a corporation under the laws of this State and used and operated the wagon, reel and appliances herein afterwards, mentioned. That prior to and on the 4th of February, 1903, the plaintiff was in the employment of the defendant, and on said day at and about the work of putting a reel of cable wire on a wagon near the northeast corner of Broadway and Spruce streets as a laborer. That as the plaintiff, in the discharge of his duties as such laborer, was assisting in rolling said reel of cable wire upon a wagon furnished by the defendant to receive it, the supports upon which said reel rested gave way and became displaced, whereby said supports under said reel and said reel fell upon his right foot and leg and so injured them as to necessitate the amputation of his right leg above the knee, and otherwise injured him upon his body, and the plaintiff avers that said supports under said reel were caused to give way and so injure the plaintiff because said supports were insufficient for said purpose, and because the wagon furnished to receive said reel by defendant was of improper structure and was unblocked and insecure to prevent its giving way and toppling under the weight of said reel, which was over three thousand pounds in weight. That the floor of the wagon extended beyond the wheels so that when the weight of said reel was applied on the edge of the floor of the wagon the said wagon was caused to give way and the supports under said reel were caused to fall and injure the plaintiff as aforesaid. That the defendant and its agent in charge and control of said work was negligent in using said wagon for said work, and was negligent in failing to put blocks or supports under said wagon or otherwise securing the same to prevent its giving way under said strain. And was further negligent in failing to properly secure the support under the skids used to support the weight of said reel while it was being placed upon said wagon, and was further negligent in ordering plaintiff to do said work when said appliances were in such insecure and dangerous condition. The plaintiff further states that defendant’s agent and foreman in charge of said work well knew of the defective and insufficient condition of said wagon and appliances, yet negligently ordered and directed said work to be done without using any care to remedy such conditions, which several acts of defendant and its said agent each contributed to cause the plaintiff’s injuries as aforesaid. That by his injuries so sustained the plaintiff has suffered and will suffer great pain of body and mind; has been crippled for life and permanently disabled from labor and has lost and will lose the earnings of his labor, has incurred and will incur large expenses for medicines, medical and surgical attention and nursing, to his damage in the sum of twenty-five thousand dollars, for which sum he prays judgment.

The answer was a general denial and a general plea of contributory negligence. The reply was a general denial.

The testimony tended to show that the defendant at the time of the alleged injury to plaintiff was engaged in furnishing gas and electricity to the people of St. Louis. One of the means of doing this was by using cable wires, and in carrying on its business it became and was necessary for it from time to time to haul reels on which cable wires were rolled from place to place. These reels were hauled upon wagons provided by defendant for that purpose. On the day before the injury a wagon usually used by the defendant for said purpose had broken down and the defendant had procured another wagon, which was constructed and adapted to hauling heavy stone. It appears that the bed or floor of this wagon extended out several inches beyond or outside of the wheels, some four to six inches beyond the tires. It was upon this wagon that the defendant’s servants, including the plaintiff in this case, were engaged in loading the reel of cable wire, weighing about three thousand pounds, at the time that the plaintiff was injured. The evidence tended to show that this wagon was of the kind generally in use for hauling stone, safes and other heavy articles. The body of this wagon 'was about eighteen inches from the surface of the ground. On the morning of the injury to plaintiff he was at work at Broadway and Market streets. Miles Shevlin was in charge of several men at Broadway and Spruce, who were trying to put the reel in question upon the wagon. They were unable to procure proper skids or appliances for loading the reel and sent word to the general foreman, Andy Gallagher, that they would require proper skids to put the reel on the wagon. Thereupon Gallagher, who was the foreman over the plaintiff and other employees of the defendant, took six or eight men, including the plaintiff, with him to the place where the reel must be loaded. Prior to Gallagher and his men reaching the place Shevlin had used a barrel skid about eighteen inches wide and twelve feet long, hut it proved insufficient, and he on that account sent for Gallagher. After Gallagher reached the place where the reel was, he took charge of the work of loading the reel on to the wagon. It appears that before Gallagher reached the place, Shevlin had sent some of the men to get some blocking and that they met Gallagher on their way down and told him they were going for the blocking. He said: ‘‘Never mind, there is enough blocking down there. Come on back with us.” Shevlin testified that there was no blocking under the wagon to keep it from tipping; that he told Mr. Gallagher that he had tried to load the reel on that day, and that he ought to block the apron of the wagon, but Gallagher made no reply to this suggestion. He testified that the blocking would support the apron of the wagon so as to keep it from tipping down when the weight of the reel went on it. This apron was about eighteen inches above the surface of the street. After Gallagher reached the place, a wagon loaded with cross-arms, which are usually used upon telegraph and electric light poles, arrived on the scene, and'thereupon two of these cross-arms were placed as skids extending from the sidewalk to the wagon and under these skids a few feet from the wagon were placed some cross-arms, one being laid upon another to serve as props. With this preparation the reel was rolled upon the skids towards and upon the wagon. When the reel got to the wagon the skids collapsed, the edge of the wagon tilted and the reel fell upon the foot and leg of the plaintiff, who ¡was helping roll the reel up to the wagon. The plaintiff’s leg was broken and it was necessary to amputate the same above the knee. There was no evidence of any negligence on the part of the plaintiff in doing his work in pushing the reel. There was evidence on the part of the defendant that the wagon was adapted to the work of hauling reels and there was also evidence that the manner of placing the props and skids was left to the men. Mr. Gallagher, the foreman, testified that he supplied this wagon on this occasion to haul the reel and that it was customary to use cross-arms for skids, that the defendant company had a supply in store. The evidence as to the injury and damage to plaintiff tended to show that the plaintff was a strong, able-bodied man, forty-nine years old and earning sixty dollars per month; that since his injuries he has only earned forty dollars for eight days service as judge of election. His doctor’s bills at the hospital were paid by the defendant. Since leaving the hospital he has incurred the expense of a doctor for five visits at two dollars a visit, and that he has been nursed by his wife since leaving the hospital as his limb had to be dressed every day by her.

The jury returned a verdict of five thousand dollars, and judgment for that sum was rendered.

I. As to the contention of the plaintiff that the wagon was not a suitable one, the circuit court found against the plaintiff on this proposition and we have been unable to find anything in the evidence to show that it was not. It was constructed for the purpose of hauling heavy articles such as heavy stone, and was built with a low body about eighteen inches above the surface of the earth. We think there was no evidence to submit to' the jury that the defendant was negligent in using- this character of wagon.

II. The conflict is whether there was sufficient evidence to support the plaintiff ’s contention that the defendant negligently failed to furnish plaintiff with reasonably safe appliances and a reasonably safe place in which to do his work in assisting to roll the reel upon the wagon. The defendant insists that there was no evidence whatever of negligence on its part and that the mere fact that the wagon tipped when the reel first rested upon its edge, and that the skids broke down and gave way, thereby precipitating the reel upon the plaintiff and breaking his leg, did not make a prima-facie case against the defendant. Whereas the plaintiff insists that, as it was the defendant’s duty as a master to use ordinary care in supplying appliances reasonably safe and suitable for the plaintiff to work with in the discharge of the duties of his service and also to use such care in commanding and controlling the work, the failure of the foreman, Gallagher, who was the vice-principal of the defendant in the matter of providing the appliances for this work, to have the wagon blocked so as to keep- it from tipping, and in neglecting to place proper skids and sup'ports under the skids to sustain the weight of the reel, was negligence. The question now is whether the circuit court should have sustained the demurrer to the evidence. In reaching the conclusion upon this proposition, it is clear, we think, that the foreman, Gallagher, represented the defendant in the matter of providing the appliances for this work and in directing how it was to be done. While there was some evidence on the part of the defendant’s other employees, who were present at the time, to the effect that in rolling the reels on to the wagons and taking them off, the men generally adopted their own system and it was left to them to determine how the skids were to be placed and what props were to be nsed, the testimony of the plaintiff, Shevlin and Qninette and others, clearly establishes that Gallagher was present and directing the loading of the reel, and that when Shevlin sent the men to get blocks he countermanded the order and said there were plenty of appliances on hand and he directed the laying of the skids and other supports. This clearly is not a case, so far as the plaintiff’s witnesses are to be credited, in which the master has performed his duty in furnishing to his servants means and appliances and leaving the use of the appliances and the manner of the work to the judgment of the servant, and consequently the facts of the case do not bring it within the principle of Forbes v. Dunnavant, 198 Mo. 193; but is a case in which the foreman was on the ground and took charge after a subordinate of his had failed to load the reel upon the wagon, and had called upon him for better or more appropriate appliances, and in which the foreman directed the plaintiff and his associates as to what appliances should be used, and how the work should be done. And if there was negligence in failing to exercise reasonable care in providing proper appliances and in the manner in which they should be used, we think there is no escape from the conclusion that it was negligence of the defendant through its vice-principal, Mr. Gallagher. It was not a case where the master had supplied a sufficiency of materials and appliances and then left the work to the judgment of his servants and his fellow-servants. [Coombs v. Construction Co., 205 Mo. l. c. 379.]* But it is also insisted by the defendant that tbe facts of this ease bring it 'within tbe rule announced in Brands v. Car Co., 213 Mo. 698, in which it was held that no inference of negligence of a master arises from evidence that the appliances furnished were such as are ordinarily used for like purposes by persons engaged in the same kind of business, and negligence cannot be imputed from the employment of machinery in general use. In that case the master furnished a straight emery wheel of the character in general use in all manufacturing establishments in the vicinity where he had business, and there was no evidence to show that that character of wheel was inherently dangerous to employees using them. In this case there was no evidence that this device of improvising skids out of the cross-arms and building up supports with them had ever been adopted by any other companies or freighters in St. Louis or elsewhere. The most that can be said of this evidence is that the defendant had used these cross-arms in this way in loading their reels and that plaintiff had assisted in loading reels on other occasions with such appliances. But he had never seen this appliance used or character of propping done, for the loading of a reel as heavy as this one was. When plaintiff reached the ground where the reel was to, be loaded, the skid had already been laid from the sidewalk to the bed of the wagon and the props put under it. It seems to us that the doctrine in the Brands case as to negligence in using a well known and long used character of machinery, has little or no application to the facts of this case.

But it is the contention of the defendant that the wagon might have been loaded a thousand times without tilting. The mere fact that it did tilt did not create any presumption that such tilting should have been provided against by blocking the wagon itself, and that in order for the plaintiff to recover, it devolved upon him to show first that if it had been blocked, the accident would not have happened, and secondly, that such propping was necessary and that the usual method adopted in the loading of such a wagon was to prop the wagon itself. The evidence clearly tended to show that the tilting of the wagon bed did cause the fall of the reel and the instability of the props under the skid caused the skid to break and precipitate the reel-upon the plaintiff. The evidence tended to prove that Shevlin, who first had charge of the work of loading the reel, was of the opinion that it could not be safely done without propping the wagon and this on account of the great width of the bed extending out from the tires of the wheels, and that Gallagher, the foreman’s attention was directedly called to the necessity of such propping. .And the sequel showed that Shevlin’s judgment was correct. Thus we think it became a question of fact for the jury to determine, in view of all this evidence, whether Gallagher exercised ordinary care in requiring the reel..to-be loaded upon this wagon without having first made it firm by props, and this would not be a conviction of the defendant of negligence merely from the fact that the wagon did tip, but whether it was negligence in view of all the facts apparent to Gallagher, as well as Shevlin, that the loading of a reel, weighing three thousand pounds, upon as broad a surface as the wagon bed presented, would not suggest and require of a reasonable man the propping of the wagon so as to prevent its tipping when this heavy reel should come upon the outer edge of the wooden bed. As to the contention that there was no proof that the propping of such a bed was the usual method adopted in loading it, there was no evidence as to what the usual method was, while on the other hand there was no evidence that such a method as adopted by Gallagher had so long been used by the defendant and others using like conveyances without accidents or tipping of the wagon, as to show that in adopting such a method defendant was but following such course and manner adopted generally by others engaged in like work ia handling freight or articles of as great weight as the reel in this case was. It might well have been that a reel of much less weight could have easily and safely been loaded upon the wagon without tipping it, but it was a question of fact for the jury, considering the great weight of the reel, as to whether a reasonably prudent man, in view of the natural laws of gravity, would not have concluded that to attempt to- load this heavy reel upon the outer edge of this wide wagon bed would not naturally tip the wagon. And if it would do so, that ordinary care would have dictated to him the necessity of propping in order to safely load the reel and protect the men, who were rolling it up the skid, from having it fall back upon them. In our opinion this question was properly submitted to the jury upon all the facts in evidence. If the jury found, as they did, that the superintendent, Mr. Gallagher, was negligent in devising supports for the wagon and skids and in requiring the plaintiff to work in pushing the reel upon the wagon, then plaintiff cannot be charged with having assumed this negligence of the master. Nor on the other hand with having worked in a place so obviously dangerous that no prudent man would have attempted to have rolled the reel up the skid and on to the bed of the wagon. These principles, we take it, are too well settled in this State to require a citation of authority.

In our opinion then the court did not err in overruling the demurrer to the evidence and submitting the case to the jury under proper instructions.

III. What we have said in the foregoing paragraph applies as well to the objection to the plaintiff’s first instruction, which is hypothecated upon the facts, which were submitted to the jury, to say by their verdict whether the defendant was guilty of negligence in failing to prop this wagon and support the skids with proper blocking.

IV. Among other instructions the court gave the following as to the measure of damages, and known in the record as number 16: “If the jury find for the plaintiff they should assess his damages at such a sum as they believe from the evidence will be a fair pecuniary compensation to him, first, for any pain of body or mind which the jury believe from the evidence he has suffered by reason of said injuries and directly caused thereby; second, for any loss of the earnings of his labor which the jury believe from the evidence the plaintiff has sustained or will sustain by reason of said injuries and directly caused thereby; third, for any expenses necessarily incurred for medical treatment or nursing, which the jury believe from the evidence the plaintiff incurred by reason of such injuries and directly caused thereby. ’ ’ Counsel for the defendant challenge this instruction on the ground that it allowed plaintiff to recover for medical services, when they insist that there was no evidence that he paid anything for the same, or was liable to pay for the same. This contention grows out of the difference of view as to what the evidence shows in regard to the doctor’s bill for five visits after the plaintiff had left the hospital. When the plaintiff was on the stand he testified that his leg was amputated by Dr. Amyx with the assistance of Dr. Coryell and Dr. McCandless. In answer to a question by counsel for the defendant, “You did not have to pay Dr. McCandless, Dr. Amyx and Dr. Coryell for that amputation? Ans. No, sir. Q. Nothing for the hospital services or professional nursing? Ans. No, sir. Q. In your deposition taken shortly after this accident, you stated that your doctor bills were paid by the company ? Ans. I did not pay them. ’ ’ He was asked also by his own attorney, “Now who has treated you, if anybody, since you have left the hospital? Ans. Dr. Amyx. Q. How long did lie treat you after you left the hospital? Ans. He was called in on one occasion when erysipelas set in in my stump. Q. How often did he treat you for that? Ans. Five times, five visits. Q-. What was his bill? Ans. Two dollars per visit. Q. For the amputation of your leg do you know who paid? Ans. I do not know, sir.” It is the contention of the defendant that as the defendant company paid the bill of Dr. Amyx to the amount of $150', it thus appears that this bill of Dr. Amyx of $150' paid by the defendant was all the doctor bills that were paid and that this bill of ten dollars was included in that bill. After carefully reading the testimony of the plaintiff and Dr. Coryell, it is evident that the defendant' did pay the doctor bills for the amputation and their services at the hospital, but that plaintiff in his testimony did not include and did not consider that defendant had paid Dr. Amyx for the five visits and services rendered after plaintiff had left the hospital. We think there is no merit in this assignment of error. We cannot bring ourselves to believe under any circumstances that it entered to any great extent into the making up of the verdict for plaintiff.

Y. It was also urged as error that the circuit court refused to give three instructions designated as D, E and F, which embodied the principle of non-liability of the defendant for the negligence of the fellow-servants of the plaintiff in failing to prop the wagon and in failing to hold on to the reel while pushing it up on the skid.

In so far as this instruction submitted to the jury the negligence of plaintiff’s fellow-servants in letting go their hold on the reel when the tilting of the wagon threw it back on the skid, we think there is absolutely no evidence to support it. Like plaintiff, they were obeying the orders of the foreman in pushing the reel up' the skid on to the wagon bed or apron, and when it was tilted back on them they merely jumped out of its way, in obedience to the impulse of self-preservation, and in so doing could not be chargeable with the negligence of the foreman which had brought them into this dangerous situation.

As to the other ground of negligence, to-wit, their failure to prop the wagon to prevent its tilting the reel, it wholly ignores the responsibility for the negligence of the foreman in failing to have the wagon propped, and when he was on the ground directing what propping or failure to prop should be done, as the evidence absolutely showed.

If it be-contended that the statements of the absent witnesses, Daly and Butler, support defendant’s position, it is to be observed that Daly merely says, “In rolling reels onto wagons and taking them off, we men generally adopted our own system. It was left to us to determine first how the. skids were to be placed, and what props were to be used. It was not our foreman’s duty to personally [attend] to these duties.” "Whatever might have been the general custom was beside the point at issue in this case. Here the uncontradicted testimony was that the foreman Mr. Gallagher did take charge of this particular work, as he had the right to do, and that he did not leave it to the men to determine just how the skids were to be placed and what props were to be used. He determined that there was no necessity for propping after having been advised and warned by the subordinate foreman, Shevlin, that it was necessary. The fact that the men did not suggest the necessity of propping or what they thought about it, was immaterial. Nor was the plaintiff bound by what they thought or did not think. He was not present until the skid was adjusted to the wagon. He found the foreman in charge and directing the loading of the reel, and what was said by Judge Sherwood in Sullivan v. Railroad, 107 Mo. l. c. 78, is peculiarly applicable here, to-wit, “The fact that Prather [Gallagher] was present and ordered and superintended the removal of the last section of the roof when the accident occurred was tantamount to a tacit assertion that it was safe for plaintiff to proceed, . . . and plaintiff was not bound to search for danger, but had a right to rely upon the judgment and discretion of the defendant’s foreman that he would fully perform the measure of his duty towards him.” In Bowen v. Railroad, 95 Mo. 277, this court approved the following excerpt from Arkerson v. Dennison, 117 Mass. l. c. 412: “When the preparation of the appliances is neither entrusted to nor assumed by them, the master may be held guilty of negligence, if defective appliances are furnished, even though the workmen themselves are employed in the preparation of them.” No more striking* example of this doctrine could well be afforded than the facts of this case furnished. Here one foreman had "found the appliances at hand- insufficient and had applied for more, and thereupon his superior had come upon the ground and assumed charge of the work and directed it to be done, without propping the wagon or requiring the skid to be properly supported. To have invited the jury to have found that plaintiff’s injuries, under this state of facts, were due to the negligence of his fellow-laborers, who had no voice in providing the appliances, would have led them away from the true law of the case and defendant’s liability.

VI. As to the final contention, that it was error to have permitted plaintiff to show that the wagon .ordinarily used by defendant for hauling reels had broken down on the day prior to plaintiff’s injuries, and for that reason this wagon had been procured, it need only be said that, inasmuch as the court refused to submit to the jury that the wagon that was used was insufficient, no possible harm could have resulted to defendant by that evidence.

In our opinion, tlie cause was well tried and there is no reversible error in the record, and the judgment is therefore affirmed.

Fox, P. J., and Burgess, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    ANDREAW A. MOORE et al. v. BOARD OF REGENTS FOR THE NORMAL SCHOOL IN DISTINCT NUMBER TWO, Appellant.
    Division Two,
    January 4, 1909.
    1. CONTRACTOR: Quantum Meruit: Proper Revocation of Contract: Recovery. The contractor, whose contract for the construction of a building has been rightfully terminated by the owner of the land, is entitled to recover the actual value of the materials furnished and labor and work done appropriated by the owner, less any damages suffered by the owner by reason of the contractor’s failure to comply with the contract.
    2. -: -: Arbitrary Revocation of Contract: Recovery: Damages. If the owner of the land wrongfully and arbitrarily refused to permit the contractor to carry out his construction contract and-complete the building, the contractor is entitled to recover the actual value of the work done and material furnished by -him and appropriated by the owner of the land, without any diminution by way of damages suffered by the owner because of the contractor’s failure to complete the contract according to its terms. In such case, whatever damages ensued to the owner is the result of his own wrongful act.
    3. INSTRUCTIONS: Adopted by Defendant. .Where defendant adopted the plaintiff’s theory of the law of the case as declared in plaintiff’s given instruction, by asking a similar instruction given by the court, defendant cannot on appeal be heard to complain of plaintiff’s instruction.
    4. CONTRACTOR: Qauntum Meruit: Excessive Verdict. Where the contractor, when he was ordered to stop work under his contract, called in an expert contractor and builder, who made an itemized statement of all the materials furnished and labor done, and their statement was before the jury and they were examined upon it, and the statement made by the owner of the land was not itemized and his evidence was otherwise unsatisfactory, there is nothing which would authorize the appellate court to hold that a verdict within the limits of the petition, rendered under proper instructions, was excessive, or the result of passion, prejudice or obvious mistake.
    5. -: -: Termination of Contract: Fraud: Pleading. Where the contractor in his reply pleaded that the architect wrongfully, wilfully and without any cause condemned and rejected the materials furnished, and defendant accepted this as a sufficient plea that the contract had been arbitrarily terminated, he will not be heard to rurther contend .that under the contract the opinion of this architect was final in the ab- . sence of fraud, and there is no charge of fraud in the reply.
    6. -: -: -: Penalty of $20 Per Day. A provision in the builder’s contract that he should pay the owner of the land twenty dollars per day from the time fixed for the completion of the work until its actual completion, does not authorize the court to decrease the amount the builder is entitled to recover by that twenty dollars, when, upon a wrongful termination of the contract, he sues for the value of the materials furnished and work done appropriated by the owner, if the clause of the contract relating to its termination does not call for the penalty; and a clause binding the builder “to make good all reasonable expenses, charges, damages and cost of litigation” in case of termination of the contract, does not call for such penalty. Without such a clause the penalty can he allowed to the owner only on condition that the builder completed the work but failed to complete it in time
    Appeal from Lafayette Circuit Court. — No». Samuel Davis, Judge.
    Affirmed.

      J. W. Suddath and William Audi for appellant.
    (1) A contractor working under a contract providing that he is to be paid only on the completion of the work, and, if he quits, the owner may complete building at the contractor’s cost and recover all excess, if any, off of the contractor, may nevertheless, upon termination of the contract, either by himself or the owner, sue in quantum meruit or quantum valebat for the amount of work done and material furnished before the work is completed, - and can recover the actual value of his work and materials upon the schedule of prices named in the contract, less any damages he may have caused the owner by the violation of the contract. Williams v. Railroad, 112 Mo-. 498; Yeats v. Ballentine, 56 Mo. 530; St. Francois Co. v. Marks, 14 Mo. 379'; Lamb v. Brolaski, 38 Mo. 53; Haysler v. Owens, 61 Mo. 270; Marsh v. Richards, 29 Mo. 105; Fleischmann v. Miller, 38 Mo. App. 177; Gregg v. Dunn, 38 Mo. App. 283; Globe L. & H. Co. v. Doud, 47 Mo-. App. 439 ; Linnenkohl v. Winkelmeyer, 54 Mo. App-. 570; Heman v. Improvement Co., 58 Mo. App. 480; Bassett v. Sanburn, 63 Mass. 58; Hay v. Bush, 34 So. 692; Mueller v. Gillick, 66 Mo. App. 500; Aetna I. & S. Works v. Kossuth Co., 44 N. W. 215. (2) The opinion of the architect as to the character or kind of work or material, if provided for in the contract, is absolute and final, except when guilty of fraud, and the burden is on the party charging fraud to prove it. Williams v. Railroad, 112 Mo. 488; McCormack v. St. Louis, 166 Mo. 339; Board of Education v. National Surety Co., 183 Mo. 183; McGregor v. Construction Co., 188 Mo. 623; Snoqualine Realty Co. v. Moynihan, 179 Mo. 648. (3) The penalties incurred by a contractor for non-performance may be set up against his claim on quantum meruit. Marshall v. Hamm, 2 Harr. (N. J.) 425; Ramlose v. Dollamn, 100 Mo. App-. 347; 22 Ency. PI. & Pr., 1382; Malone v. Philadelphia, 147 Pa. St. 46. (4) If damages done by failing to comply with the contract exceed the value of the labor done and material furnished, defendant may recover excess. Clapper v. Mendell, 96 Mo. App-. 401; Flieschman v. Miller, 38 Mo. App-. 177. (5) When the cause, of delay is removed, the contractor must use reasonable diligence to complete the work under the contract. And if he does not do so, he is liable for damages and in this -ease is liable to have his employment terminated. 30 Am. and Eng. Ency. Law (2 Ed.), 1256; McGown v. Co., 121 IT. S. 575; Granson v. Tober, 75 111. 540; Darmat v. Fuller, 120 N. Y. 554; Pittsburg Co, v. Natl. Tub. "Work Co., 184 Pa. St. 251; Interocean. Co. v. Sheriffs, 54 Wis. 202. And this is so regardless of the alleged delay hy strike, weather and architect. 30 Am. and Eng. Ency. Law (2 Ed.), 1257. (6) When a contractor undertakes to do certain work (as the erection of a building) within a limited period, the exercise of proper prudence on his part requires that the work be begun within such a reasonable time after the execution of the contract "as will enable him to finish it within the time limit, notwithstanding unusual, heavy, or constant rains; and when it is shown in such a case that the contractor delayed the heginning of the work to a period after which he could only have finished within the time had the season been an ordinary one, it was held to be error on the part of the trial judge to charge the jury, in effect, that if the contractor commenced the work at a period which would have enabled him to finish it within the time limit under ordinary conditions but was thereafter prevented from completing it in the given time, because of the unusual, heavy and constant rains, such causes would be a sufficient excuse for a failure to construct the building within the" time limit. Cannon v. Hunt, 113 Ga. 501.

      O. L. Bouts for respondents.
    (1) The verdict was not excessive. It is only where the amount awarded exceeds the aggregate of items testified to by the witnesses, that the verdict is excessive. Badgley v. St. Louis, 149 Mo. 122. (2) There was no error in the instructions given. The court did not undertake to cover the entire case in a single instruction, but by a series of instructions submitted the issues of fact in the case to the jury. In one of the series the jury were instructed to consider the instructions “all together and not as separate or distinct statements of the law for or against either plaintiffs or defendants.” In the absence of that instruction this court would have assumed that the instructions were considered together by the jury. Considered as a whole the instructions were far more favorable to defendants than they had a right to ask Lange v. Railroad, 208 Mo. 475; Cornovski v: Railroad, 207 Mo. 278; Johnson v. Railroad, 203 Mo. 415 ; Deschner v. Railroad, 200 Mo. 332; Lee v. Railroad, 195 Mo. 428; Norton v. Kramer, 180 Mo. 544; Dewiese v. Mining Co., 128 Mo. 426, affirming same case reported in 54 Mo. App, 476; Buchman v. Railroad, 100 Mo. App. 30.
   GANTT, P. J.

Plaintiffs sued on a quantum meruit for the reasonable value of labor performed and material furnished.

The petition states in substance that on the 14th day of November, 1903, defendants entered into, a written contract with plaintiffs for the erection by plaintiffs of what is known as the gymnasium building at Warrensburg, Missouri, and to be used in connection with the State Normal School for Normal School District No, 2; that in pursuance of the contract plaintiffs entered upon the construction of the building and had constructed a portion thereof, when, on the 16th day of September, 1904, defendant wrongfully declared said contract at an end and prevented plaintiffs from .completing the building; that on and prior to said date plaintiffs had performed work and furnished material in the construction of said building, and had delivered upon the premises, for the purposes of being used in said building, material of the reasonable value of $22,086.95; that plaintiffs had received of defendants $9,008, leaving a balance due and unpaid of $13,078.95, for which, with costs, plaintiffs asked judgment.

Defendant for amended answer to the petition admitted that the plaintiffs were partners as alleged in the petition, doing business under the firm name of Moore Brothers; denied that defendant wrongfully terminated the contract; denied that the labor performed and material furnished by plaintiffs were of the reasonable value of $22,086.95', and admitted the payment of $9,008. The answer then denied all the other allegations of the petition not specifically admitted. The answer then set up. the contract, pleading specifically article 8 of the contract, providing that in case of the failure of the plaintiffs to complete the building within the time limited in the contract they should pay to defendant $20 a day for each week day intervening after said date until the completion of the work, “provided they are not delayed by strikes, accidents, the unusual action of the elements or other unavoidable circumstances;” article 4, providing that, in case of the failure of the plaintiffs to proceed with the work and furnish proper labor and material, the architect or board should, on giving ten days’ written notice, have the right to terminate the contract, take possession and complete the building, and that the plaintiffs should make good to the board for the plaintiffs ’ failure, including all reasonable expenses, charges, damages and costs of litigation; and article 7," providing that plaintiffs .should receive $47,400 for the completion of the building. The answer then set up that plaintiffs did not make proper progress with the erection of the building as required by'the contract, and stated that defendant on giving plaintiffs notice on the 16th day of September, 1904, terminated the contract, took possession of the building and material on the ground, and proceeded to complete the building. The answer then stated that defendant had and would consume 313 days in the completion of the building and asked to have set off against plaintiffs’ claim a penalty of $20' for each of said days, amounting in the aggregate to $6,260'. Defendants stated in the answer .that they had already expended in the work of completing the building $32,181.65, and that they expected to and would expend the further sum of $20,087.90, making a total expenditure of $61,277.73, in the completion of the building, and $13,887.73 in excess of the contract price, which defendants also- asked to have set off against plaintiffs’ demand. Defendants further alleged that they had expended and proposed to expend in the way of litigation in connection with the construction of the building the sum of $3,250, which sum they also asked to have set off against plaintiffs ’ demand. Defendants alleged that the aggregate of these various sums amounted to- $23,387.73, for all of which they prayed judgment against the plaintiffs.

It was not alleged in the answer that the labor performed and material used in the construction of the building by plaintiffs up to the time defendant terminated the contract were not in compliance with the contract. The answer did not ask to recover back any portion of the money already paid by defendant to plaintiffs. It did not allege that the architect McDonald or the Board condemned any material furnished by plaintiffs for the construction of the building. The answer is voluminous and covers forty-eight printed pages.

Plaintiffs in their reply admitted the execution of the contract set out in the answer; that plaintiffs commenced the erection of the building under the contract and that on the 16th day of September, 1904, defendants stopped plaintiffs from working on the building and took possession. Plaintiffs then alleged that they would have completed the building according to the terms of the contract, but that they were prevented from doing so by “the wrongful acts, conduct, omissions- and neglect of the defendant’s agent, superintendent and architect, George E. McDonald, together with the weather conditions existing during the greater portion of the time after the plaintiffs entered upon the -construction of said building and until the said 16th day of September, 1904. ’ ’ The reply then further alleges that the superintendent McDonald wrongfully and wilfully prevented plaintiffs from proceeding with the construction of the building until the spring of 1904, thereby causing much delay, and that he further wrongfully and wilfully and without cause condemned and rejected stone furnished by plaintiffs for the erection of the building, causing additional delay. The reply further stated that plaintiffs were delayed in the erection of the building because of the unusual action of the elements, that there was an unusual amount of rainfall, and by reason of a strike of the employees of the plaintiffs.

Plaintiffs under the last provision of article 8 of the contract were not responsible for delays caused by strikes, accident and the unusual action of the elements and other unavoidable circumstances.

The record in this ease covers 685 pages.

The evidence showed that plaintiffs resided in Kansas City, Missouri, were contractors and builders in good standing, had engaged extensively in that business for many years and that A. A. Moore had charge of the construction of the building.

Plaintiffs introduced photographs showing the structure as it stood on September 16, 1904, at the time the defendants put plaintiffs off and took possession of the work. The first photograph showed the west side of the building; the second the east, the third the north, and the fourth the south side. The fifth picture showed the interior and the brick partition walls which extended to the floor joists, as high as they were built. As appears from the photographs the first or basement story of the building was constructed and some of the joists were laid on that floor, the brick partition walls were practically finished and practically all of the window caps were on. Plaintiffs introduced an itemized statement of the labor performed and of the material furnished by plaintiffs up to the time the contract was terminated and possession taken by defendants. After setting out the items the statement showed that plaintiffs then had material on the premises ready to he put into the building aggregating $4,467.30, and labor and material in the building aggregating $17,619.65, amounting in all to $22,086.95, which left- a balance due plaintiffs of $13,078.95, the amount sued for, after deducting the payment of $9,008. This statement was made on or about the time the contract was terminated, by James A. Moore, member of the firm, Dan M. Hout, plaintiffs’ foreman, and Frank H. Latimer, an experienced contractor and builder of Kansas City, all of whom including Mr. A. A. Moore testified that the itemized statement was correct, except that Mr. Latimer placed the total of the balance due at some twelve or fifteen hundred dollars less than that shown by the statement and the estimates of the other .three witnesses.

Mr. Latimer stated that he was a -contractor and builder, lived in Kansas City and was engaged principally in making estimates of material and labor necessary for the construction of buildings. He stated that at the request of A. A. Moore, one of the plaintiffs, about the time defendants took possession of the building he made an inventory of the labor performed and material furnished by plaintiffs in the construction of the building, produced the original inventory and estimates, and stated that the estimate in gross of the labor and material in the building amounted to $17,705.07 and that the material on the ground ready to be used in construction amounted to $3,076.40; that Mr. Moore, referring to A. A. Moore, foreman, and Mr. Moore’s son assisted him in making the inventory and it was carefully and correctly made. He stated that the building had reached what is termed the first or basement story and that some of the joists were on and the-brick partitions were practically all in. He was shown the itemized statement before referred to and stated that it was correct and practically the same as his own, except that his estimates aggregated some two thousand dollars less than that shown in the itemized statement. On cross-examination Mr. Latimer was taken over the whole ground and showed by items how his estimates had been made and how he arrived at his totals and aggregates. This itemized statement was exhibited to Mr. A. A. Moore while on the stand. He stated that while he did not assist in making the inventory, from his knowledge of the facts he knew that the statement was correct. He testified that at the time defendants terminated the contract two-thirds of the outside walls of the building were up to the belt course above the first story windows and the caps were set. He also stated that the interior walls were ready to receive the second floor joists, with the exception of one wall probably thirty feet long, that lacked about three feet of brick work to carry it up to the height. He stated also that these brick walls did not go higher than the first story. He testified these brick walls were practically built, that there were two of them running the full length of the building, and besides there were two walls built of brick for the bowling alley in the basement.

James A. Moore, a member of the firm, stated that he in connection with Mr. Latimer and Mr. Hout after defendants took possession of the building made the inventory and that he afterwards copied it and extended the prices as shown in the itemized statement, and that the statement was correct, together with the aggregates. He produced the original statement made by him and said it corresponded with the statement introduced in evidence, except that all the prices had not been extended on the original. He further stated that there had been no work on the job by the defendants at the time he made this inventory.

Mr. Dan M. Hout testified that he had been a contractor and builder for thirty-five years and was employed by the plaintiffs to look after the construction of the building. He stated that he was on the ground when Mr. McDonald came and took possession of the building, and that he afterwords, on the 13th day of October, he thought, assisted Mr. Latimer and Mr. James A. Moore in making the inventory of the material furnished and the labor performed as shown in the itemized statement introduced in evidence. He said he made the measurements and that they were correct. He said further that he had examined this itemized account, prices and estimates and that they were correct. The account follows his testimony.

The witness Mr. Latimer^ having stated how the prices were fixed and the estimates arrived at, referring to each item of plaintiff’s account, the witnesses A. A. Moore, James Moore and Hout were not asked either by plaintiffs or by defendants to gO' over the ground again. They testified to the correctness of the items and that the aggregates and balance as shown in the account and claimed by the plaintiffs were correct.

Plaintiffs’ testimony tended to show that they were not to blame for any delays that occurred in the construction of the building. Article 8 of the contract provided that plaintiffs should commence work immediately upon the building or within one week from the date of the approval of their bond and cause a steady progress of the same until its completion. Plaintiffs’ testimony tended to show that it was practicable tó do so, and that the winter weather following the execution of the contract would not have interfered with that work. Mr. Latimer testified that it would have been practicable to have commenced the construction of the building on the first of December, 1903, and to have proceeded continuously. And the testimony of Hout and Forrester was to the same effect. Moore testified that while he could not get any of the cut stone for the construction of the walls of the building, he could obtain all of the other material necessary to proceed with the construction of the building up to the point where the cut stone was needed; that he took steps to get such material and to .commence immediately the construction of the building, told George E. McDonald, defendants’ superintendent, his plans, and McDonald ordered him not to proceed with the construction and prevented bim from doing so until the spring following. In this he was corroborated by the testimony of James A. Moore, who testified that McDonald said to him: “Q. Did you talk to McDonald about it? A. Yes, sir. Q. What did he say? A. He said we had plenty of time, we didn’t have to get along with the building this winter, ‘we will get at it next spring.’ ” That by the action of the architect McDonald, in ordering plaintiffs not to commence the construction of the building in the fall of 1903, they were delayed and unable to do anything in the way of construction until the spring of 1904. During the winter months, and subsequently, plaintiffs purchased and made contracts for material sufficient for the completion of the entire building, contracting with Pickle Bros, for- the sawed stone for the facing, superstructure and the rubble stone.

When the spring came, commencing with March and continuing up till September, there was an unusual rain fall, which caused another delay despite anything plaintiffs could do-. The fact that they had not been permitted by the architect to lay the foundation and put in the concrete during the winter and before the rains came made their work much more difficult during the rainy season. He testified that it was the most unusual spring he had ever seen, and that he had lived in Missouri for more than forty years. Aubry F. Smithson testified that he kept a record of the precipitation in Warrensburg during the spring of 1904, commencing with April. He testified to the number of days that rain fell, commencing on April 21st, and ending with August; that the total rain fall in Warrensburg during that time was 34.56 inches. Other witnesses testified that there was an nnnsnal rain fall in the spring of 1904. Mr. Hont, plaintiffs’ foreman, testified that the spring was a very wet one, that the excavations and ditches filled with water and caved in and that it was very difficult to proceed with work.

On the 27th day of April plaintiffs received of Pickle Bros, three wagon loads of sawed or cut stone. That stone had not been delivered earlier because it could not be quarried in the winter or in the early spring owing to the wet season. The evidence showed that plaintiffs, in order to get the stone from the Pickles as soon as possible, had gone on a note of the Pickles to enable them to raise money to quarry the stone. On the arrival of the stone, April 27th, defendants’ superintendent, McDonald, promptly condemned every foot of it. The Pickles refused to furnish more, all of which caused another delay. There were two quarries, one called the Pickle quarry and the other called the Forrester quarry, each situated about two miles from Warrensburg. Defendants’ superintendent, McDonald, then went to the Forrester quarry, examined it and the stone, four loads of which were on the cars and open to inspection, pronounced the 'stone good, fit to go into the building, and ordered and directed plaintiffs to make a contract with Mr. Forrester for stone to finish the building. Thereupon the plaintiffs, in accordance with the direction of Superintendent McDonald, contracted with Forrester for stone to finish the building. A written contract was entered into, dated May 17, 1904; Thereupon Forrester commenced to quarry stone immediately and sent it to the mill to be sawed for delivery to the plaintiffs at the building. On May 28th plaintiffs received of Forrester the first consignment of stone, and all the same quality of stone defendants’ superintendent, McDonald, examined and directed to be purchased. This stone McDonald also condemned, “pretty near all of it.”

Plaintiffs continued to receive stone from the Forrester quarry up to the time they were put off the job by the defendants, and McDonald continued to condemn large parts of it, thus delaying plaintiffs in their work. McDonald would approve and then condemn the same stone. And again he would condemn and afterwards approve the stone. He was of one mind one day, and of another the next. The foreman Hout testified: “He [referring to McDonald] came there and condemned it at first, the first day he would condemn it and the next day he would accept it. He would come in and we would be at work and he would look around, say it was no account, and then after-wards he would come in and say it was all right, and then afterwards he would come in and condemn it again. . . . He would come around and condemn it after he had accepted it and again he would come in again and say it would be all right to go ahead and work on. . . . A. He did that right along.” Mr. Hout stated he endeavored to induce McDonald to examine the stone before it was placed in the building and say whether or not it would be condemned, that McDonald refused and continued to reject stone after it had been placed in the building or after it was made ready to be placed in the building.

The evidence showed that McDonald in this way condemned a great deal of stone that ought not to have been condemned under the contract and that was good building stone. Some, of the same stone condemned by McDonald while plaintiffs were on the job was accepted by him and put in the building after defendant terminated the contract.

In a conversation defendants’ superintendent, McDonald had with Mr. Forrester about the time he directed the plaintiffs to buy stone from Forrester, McDonald asked Mr. Forrester what he was going to charge the plaintiffs for stone and when told by Mr. Forrester that he was going to charge the same price lie made to Mr. Moore before, McDonald replied, “Why don’t yon get more for it?” And when told by Mr. Forrester that he did not like to do that under the circumstances, McDonald said, “I am going to see Mr. Moore and tell him to get this stone from you and I will see that your stone is used in the building.” Adding further, “We understand each other.” McDonald further said to Mr. Forrester, “Of course I am going to use your stone in the building, nobody’s but yours,” and then added, “Of course any little present you give me afterwards is nobody’s business.” Defendants’ superintendent, McDonald, for condemning the Pickle stone and recommending the Forrester stone, asked a bribe of Mr. Forrester. Failing to get the bribe he then condemned the Forrester stone as shown by the evidence before stated.

McDonald said to Mr. Graham, “He [McDonald] was going to take Moore Bros, down the line that they had never gone before and that they would know it before he got through with them, that he would make their heels hit the ceiling.” Mr. Graham said he had other conversations with McDonald to the same effect. Mr. Graham testified further that he was hauling at the time for plaintiffs and that McDonald told him that plaintiffs were not paying him enough for his work and that they did not pay their hands wages enough.

Mr. W. L. Hyer testified that McDonald requested him to see James Miller, who was then working for plaintiffs upon this job, and induce Mr. Miller to quit work. Mr. Hyer afterwards saw Mr. Miller and repeated to him what McDonald had said.

Plaintiffs were delayed in the construction of the building some week or ten days by a strike of the hands.

Mr. A. A. Moore testified that the delays heretofore mentioned all told amounted to five months and a half. Mr. Herat, plaintiffs’ foreman, stated that the delays amounted to about four months.

Mr. James A. Moore, on cross-examination, testified that he made the figures and presented the bid for plaintiffs for the construction of this building and that there was a reasonable profit in the contract for the plaintiffs had they been permitted to complete the building. Mr. Moore presented his figures made at that time, which corroborated his statement. Mr. Moore further testified that McDonald at the time showed him the figures that he had made, which ran about $40,000: for the construction of the building.

Plaintiffs ’ evidence tended to prove that Mr. A. A. Moore on the part of the plaintiffs gave the building his personal and all necessary attention and supervision, and that D. M. Hout, the foreman employed, was a-competent man.

The court submitted the question as to the causes of the delay in the construction of the building to the jury-

The defendants’ evidence did not contradict the testimony of the plaintiffs, but corroborated it.

Defendants introduced no testimony in conflict with plaintiffs’ testimony showing that it was practicable to have commenced the construction of the building immediately upon the execution of the contract in the fall of 1903, and to have proceeded until the building was finished; that McDonald, defendants’ architect and superintendent, refused to permit plaintiffs to commence upon the- execution of the contract, but delayed them until the spring of 1904, and that plaintiffs were delayed by the unusual and unprecedented rainfall in the spring of 1904, and by a strike.

Defendants’ architect and superintendent, George E. McDonald, was sworn by defendants and testified in the case. He did not deny that he had ordered plaintiffs not to commence the building until spring, 1904, or that he had condemned all of the Pickle stone. He admitted that he had directed plaintiffs’ foreman, Dan Hont, to buy the Forrester stone. He did not deny that he afterwards condemned the Forrester stone without cause, wilfully and wantonly, and caused much delay thereby as testified to by Mr. Hout. He did not deny the conversation sworn to by W. L. Hyer, in which he asked Hyer to induce plaintiffs ’ employee, James B. Miller, to quit work on the building. Defendants’ evidence showed that at about that time McDonald, as defendants’ superintendent, wrote a mandatory letter of date June 29th, .commanding plaintiffs to furnish more hands. He denied that he asked Forrester for a bribe, as testified by Mr. Forrester, or that he had tried to induce Mr. Graham, in the employment of plaintiff, to demand higher wages, or that he had said to Mr. Graham that he would give plaintiffs a rougher experience in the performance of this contract than they had ever had before, as testified by Mr. Graham.

Defendants’ evidence showed that after they terminated the contract with the plaintiffs they, in connection with their superintendent, George E. McDonald, made a contract with the Pickles for stone to finish the building and with which they did finish the construction of the building. The stone furnished by Pickle to defendants and their superintendent, McDonald, was from the same quarry and the same character of stone as that furnished by Pickle to. plaintiffs and condemned by defendants’ superintendent, McDonald, and was practically all approved, a very small portion of it condemned. Defendants’ bookkeeper testified that the total of Pickle’s bill for stone under this contract was $6,274.76, and the total amount of stone rejected amounted to only $248.50, being less than four per cent, and he further stated that this deduction arose partly on account of stone not being prepared in proper sizes and over a controversy as to a blacksmith bill.

Defendants’ evidence tended to prove that plaintiffs contracted for less than they could construct the building, by reason whereof plaintiffs desired to throw up the job. Defendants for that purpose called Joseph Stone as an expert. Mr. Ludlow’s testimony was like unto Mr. Stone’s, by agreement of parties. Mr. Stone testified that the labor performed and material furnished by plaintiffs were better than the contract called for. He further testified that he had a conversation with defendants’ architect and superintendent, George E. McDonald, and that McDonald stated that he had figured on the cost of the building according to plans and specifications and that it could be built for less than $47,500.

Defendants introduced Charles Briener, who testified that he had been a stone contractor and superintendent for forty years, that he had built Convention Hall in Kansas City, that he examined the building after plaintiffs were put off the job, and that the material furnished and labor performed by plaintiffs were better than the contract called for and that he had' told McDonald so. He stated further, in response to question by defendants, that the work performed by plaintiff's was the hardest part of the job. He said: ‘ ‘ Laying the work and putting on the corners and getting ready for the work to be established is the hardest part and when you get to a certain height you have certain preparations for all of your material and you can rush it and it is easier.” McDonald entered no denial to this testimony or the testimony of Joseph Stone to the same effect. Nor did he deny that he stated to James A. Moore that the building could be erected for $40,000' as testified to by Moore.

As to the question of the value of the material furnished and labor performed by plaintiffs, defendants introduced testimony in conflict with the estimates testified to by plaintiffs ’ witnesses. Defendants, however, introduced no itemized statement showing the value of the material furnished and labor performed by plaintiffs. They introduced estimates and the opinions of experts upon measurements furnished by others and partial statements and estimates. Defendants’ witness, Volmer, testified that he had made three estimates, no two of which were alike. One of defendants ’ superintendents, J. N. Suddath, testified that he had made an itemized statement of the estimates he had testified to and referred to “Exhibit 36.” On examination of “Exhibit 36,” it was found that it was a statement made by Volmer, defendants’ stone, foreman, and only purported to itemize the material left on the ground, without any reference to the labor or material in the building and was in part of lumping estimate.

Defendants’ testimony showed that after they took charge of the building they took their time and spent money freely. Defendants retained the services of their superintendent, George E. McDonald, hired Mr. J. N. Suddath to superintend, John Volmer superintendent or foreman of the stonework on the stone building, and Samuel Bratten to keep books for the “Board of Regents at the gymnasium building,” all in addition to the employees who labored with their hands. In this way the labor account amounted to $16,769.75, in a total expenditure for labor and material of $32,181.65. In other words, defendants expended $16,769.75 to put in place in the building only $15,411.90 worth of material.

One of the defendants’ superintendents, George E. McDonald, testified at the trial on the 21st day of August, 1905, eleven months and five days after defendants terminated the contract, that he would spend another three months and would expend $20,493.90 more money in completing the building.

Defendants offered no evidence as to the item of $3,250‘, which the answer alleges they had and would spend in litigation over this contract.

I. The right of plaintiffs to recover the actual value of the materials furnished and work and labor done by them in the construction of the building on the land of defendants, not exceeding the contract price and appropriated by defendants, less any damages suffered by defendants by reason of the failure of plaintiffs to comply with the contract for the construction of the building, was clearly recognized by defendants in the instruction requested by them and given by the circuit court. Repeated decisions of this court establish this principle of law in this State. [Thompson v. Allsman, 7 Mo. 531; Lee v. Ashbrook, 14 Mo. 379; Marsh v. Richards, 29 Mo. 105; Yeats v. Ballentine, 56 Mo. 530; Williams v. Railroad, 112 Mo. l. c. 498.] There is no disagreement as to the law as to this proposition. But defendants complain of the first instruction given for plaintiffs. That instruction directed the jury that if they found from the evidence that defendants wrongfully terminated the contract and refused to permit plaintiffs to finish the building, then plaintiffs were entitled to recover the reasonable value of the work done and materials furnished by them, up' to the day the defendants refused to permit plaintiffs to carry out the contract, not exceeding the amount alleged, in the petition, to-wit, $22,086.95, less the admitted payment made by defendants, to-wit, $9,-008, and not exceeding $13,078.95, the balance claimed in the petition. Thus a different principle was invoked, to-wit, that if the defendants wrongfully and arbitrarily refused to permit plaintiffs to carry out their contract, the plaintiffs were entitled to recover the actual value of the work and the materials furnished by them and appropriated by defendants, without diminution by any alleged damages suffered by defendants by the failure of plaintiffs to complete the contract according to its terms. In other words, if the jury found that defendants wrongfully refused to permit plaintiffs to carry out their contract, then whatever damages ensued was the result of their own wrongful act. The defendants adopted this view of the law in their first instruction given by the court, and cannot now be heard to complain of plaintiffs’ instruction asserting the same doctrine. [Bean v. Miller, 69 Mo. 384; Halpin v. Manny, 57 Mo. App. 59.]

This first instruction of plaintiffs is challenged because it is asserted that it is a peremptory direction to the jury to- find for the plaintiffs, even though the amount theretofore paid by defendants was equal to or exceeded the value of plaintiffs’ work and materials. This is a misconception of the instruction. The right of plaintiffs to recover the value of the work done and materials furnished, without diminution by damages, was conditional, first, that the jury should find that defendants wrongfully refused to permit plaintiffs to perform their contract, and second, in no event were the jury permitted to find beyond the reasonable value of the work and labor furnished up- to the day they were forbidden to- do anything further on the building, and they were peremptorily required to allow defendants the amount already paid to plaintiffs.

As to the further criticism, that the instruction left the jury without any guide as to what would constitute a wrongful termination of the contract by defendants-, we think it was equally groundless. The jury were fully advised in plaintiffs’ second instruction and defendants’ fourth instruction as to what conduct on the part of the plaintiffs would have justified defendants in dismissing plaintiffs and doing the work themselves. The instructions were to be -considered together, and when so read, the jury could not have been misled as to what conduct on part of plaintiffs justified defendants in taking the building out of their hands, especially when defendants’ instructions 7 and 8 are considered. We think the objections are without basis. Moreover, the jury found a substantial sum for plaintiffs after allowing the credit, and obviously understood the instruction required them to allow the credit, and only find for plaintiffs the value of the work and materials, less the credit.

II. On the oral argument and in the briefs the insistence was and is that the verdict was excessive. The evidence on the value of the work to be done and materials furnished was all before the jury. Plaintiffs left nothing to conjecture as far as they could avoid it. When they were ordered to stop' work, they called in an expert contractor and builder, and they went over the whole work and measured it and made an itemized statement of all the work and materials. This original statement was before the jury. The witnesses who made it and did the measuring were examined upon it. On the other hand, the evidence as to the value of the work on the part of the defendants was of an unsatisfactory character and the jury credited plaintiffs’ witnesses. We see nothing in the record which would justify .ns in disregarding the finding of the jury as the result of passion, prejudice or obvious mistake. The verdict was approved by our brother on the circuit who saw and heard the witnesses; This assignment must be ruled against the defendants.

III. Defendants now say in their third assignment of error that, under the contract, the opinion of their architect was final in the absence of fraud, and that there is no charge of fraud in the reply. As to this, the reply pleaded that the architect wrongfully, wilfully and without any cause condemned and rejected the material furnished by plaintiffs, and defendants accepted this as a sufficient plea that the contract had been arbitrarily terminated and by their fourth instruction advised the jury of the right of the architect to' reject material and “unless such condemnation showed a design on his part to abuse his powers or to wilfully interefere with and retard the progress of the work,” his action afforded no excuse to- defendants. Having tendered the issue in this form, defendants are in no attitude to complain that the action of the architect was not required to be fraudulent.

IY. Error is asserted in refusing defendants’ fifth and eighth instructions and giving their converse, in instruction numbered three given for plaintiffs, in these words: “The court instructs the jury that the defendant in this case cannot in any event recover the sum of twenty dollars per day or any part thereof by reason of the provision in the contract providing that plaintiffs shall pay to defendants the sum of twenty dollars per day for each week day intervening after December 1, 1904, until the completion of the work.”

Article 8 of the contract provided: “The contractors hereby agree to commence work upon the building within one week from the date of the approval of their bond by the president of the board and to cause steady progress of same and to complete the works according to the drawings, plans, details and specifications in their true and full meaning on or before the first day of December, 1904, and 'upon their failure to so complete the work at the above-mentioned time they shall pay the board the sum of twenty dollars per day for each week day intervening after said date until the completion of the work.” The defendants prayed the court in effect that if plaintiffs failed to comply with their contract and by reason thereof it was necessary for defendants to take charge of and proceed to complete the building at a reasonable cost and in a reasonable time, then defendants were entitled to recover twenty dollars a day as liquidated damages as a counterclaim, not to- exceed $6,260, the time defendants claimed necessary to complete said building being 313 days. It is conceded defendants terminated the contract over two months before the time fixed by contract.

This penalty of twenty dollars a day was allowed defendants only on condition that plaintiffs completed the contract bnt failed to finish it in the time specified.

Article 4 under which defendants asserted their right to take charge and complete the contract, makes no provision for this penalty, but bound plaintiffs and their surety to- make good all reasonable expenses, charges, damage and cost of litigation.

In Gallagher v. Baird, 66. N. Y. Supp. l. c. 762, 763, a builder, sued on his bond, sought to limit his liability to the penalty in a contract like this, but the court said: “It is manifest that this clause contemplated a completion of the contract, with damages for delay. There was no completion, or attempt to complete, but an utter abandonment, and such clause was not intended to cover such a case, nor was provision made in the contract for such a contingency.” It was held the penalty was not the measure of damages, and obviously it was not.

*We cannot interpolate this clause for penalty into article 4 of the contract. We think the court was unquestionably right in refusing the defendants ’ instructions on this point and in giving plaintiff’s as above set out.

Y. Various objections are urged against plaintiffs’ second instruction, but we have practically disposed of some of them in what we have already said. As to the contention that it assumes the architect interfered with plaintiffs with regard to the concrete, and in rejecting material, a reference to the instruction is a sufficient answer. It expressly submitted those questions to be found by the jury. We think it does not conflict with defendants’ instructions.

YI. Instruction six requested by defendants was properly refused. The contract did not authorize defendants to terminate the contract if plaintiffs furnished an inferior grade of stone. It gave the architect the power to reject the improper stone but not to cancel the contract on that ground.

VII. It is argued that plaintiffs had made an improvident contract and were seeking some pretence to get out of it. All that matter was threshed out before the jury. The evidence consisted of opinions of various builders as to what the building would have cost if built according to plans and specifications. Some thought it would have resulted in loss to plaintiffs; others, that there was a fair profit in it. The jury were competent to pass upon all such suggestions as these and the good faith of plaintiffs. Certain it is that the termination of plaintiffs ’ contract has resulted in a large increase of the cost of this building. It is not our province to pass upon the weight and credibility of the witnesses, but if the plaintiffs’ witnesses are to be believed, as they evidently are, then the jury were fully warranted in finding that the architect did not deal fairly with plaintiffs and that his conduct in delaying the commencement of the building and in regard to the stone was without justification. The defendants have received plaintiffs ’ work and labor and materials and it seems to us that the jury correctly required them to pay for it.

The judgment is affirmed. Fox, and Burgess, JJ., concur.