Feagan v. Meredith, 4 Mo. 514

Statement of the case and opinion of the court, delivered by Tompkins, Judge. Feagan brought his action against Meredith, before a justice of the peace, where he obtained a judgment. Meredith appealed from the judgment of the justice to the circuit court. The judgment of the justice was reversed by the circuit court; and a new trial being refused, Fea-gan, the plaintiff, before the justice, appeals to this court. From the evidence preserved in the bill of exceptions, it appears that Feagan undertook to build a good rough cellar wall of stone for Meredith, and that sometime in February, 1836, the wall was built.

A part of the wall fell down one or two months after it was built. One of the witnesses states that he was requested to see it, and give an opinion ; and that, having examined the cellar, he found a part of the bottom covered with water, and a part frozen ; that he did not know whether the foundation of the wall was softened by the water, so as to cause the wall to fall.

Another witness stated that, in August, he went to Meredith’s house to build this wall, and found it (to use his own language) had not then fallen down, but was swagged all along one side, from corner to corner ; that the witness put a crow-bar in the wall and threw down about three wagon loads of the stone; and that he rebuilt about ten perches of the wall. It was in evidence that the appellee, Meredith defendant in the action, before the justice, furnished the stone for the wall; that the wall was a single tier of rock, and that the rock was not large enough to build a good wall of a single tier.

For the appellant, it was contended that the appellee should have furnished larger rock, &c. It does not appear from the evidence, that Meredith, the appellee, requested the mason to build a stone wall of a single tier of rock. The probability is, that he knew nothing of stone masonry, and confided entirely in the judgment of his mason; and if Feagan had not expressly contracted, (as it appears from the evidence that he did) to build a good wall, the law would have implied for him a-promise to do his work well.

The circumstance of a part of the wall falling, according to the testimony of one witness In a month or two after it was built, and that another wall had yielded to the pressure either of the earth, or of the house' on the wall, from one corner to the other, is conclusive evidence that it was too weak. But it was contended that, after the wall was finished, Meredith received the wall, did not object to the execution thereof, and paid a part of the money to Feagan, and promised to pay the remainder in a short time; and this promise itself would be sufficient ground of action. It does not so appear to us.

Had Meredith made the promise to pay after the wall fell, and after he knew the full extent of the injury he had received from the failure of the mason to build a good wall, there might have been some plausibility if not solidity in this argument. But when we consider that the money was paid, and the promise made immediately after the work was executed, under the pression too,'that it had been well and faithfully done, it rather seems to make the case of the appellant Feagan worse than it would have been without a promise.

Feagan being a stone mason, must be presumed to have known, when he built the wall that it was too weak for the purpose itwas designed to serve; while it j.may be fairly presumed that the other made the promise in the honesty and simplicity of his heart, believing himself under obligations to the mechanic for the faithful performance of his duty.

In such cases, the law accords with the' better feelings of mankind, making void promises made under a mistaken view of one’s duty. yror wq payment part of the stip-P”°®>an^ ^balance,Pbefore the defect in York sueh ¿n acceptance the work as to ^tiorforTtiie'em-ffoyer to pay the balance, The judgment of the circuit court is in our opinion correct, and is therefore affirmed. During this Term there were but two Judges present, Judge IVash having resigned, and no one appearing to fill the vacancy.’