Thompson & Sowers v. Allsman, 7 Mo. 530

Opinion of the Court, delivered by Scott, Judge, This was an action of assumpsit brought by Allsman against the plaintiffs in error, on a written contract to build two boats of a particular description. The declaration contained counts on the special agreement, and a common count for work and labor, &e. On the trial, Allsman obtained a verdict and judgment. The testimony in support of the special counts was contradictory; and evidence was given, conducing to show that the plaintiffs in error accepted the boats after they were built.

The court instructed the jury, that if they believed from the evidence, that the plaintiffs built the boats, and they were afterwards accepted by the defendants, they must find for the plaintiffs the value of the boats.

Although work may not be done according to the contract, and there is no waiver of the afterwards ac-person'perfor-recover itsva- It is clear,, that if the boats were not built according to contract, the plaintiffs in error were under no obligation to accept them, unless they had done some act, from which it might be inferred they waived a compliance with the contract, or unless, they with a full knowledge acquiesced in a deviation from it.

If, however, the boats were not built according to contract, and there was no waiver of a compliance with it; yet if they were after-wards accepted, the builder was entitled to recover their value. Admitting the special contract was not complied yet under the common count, the defendant in error was entitled to a verdict.

There was no error in the instruction of the court, and the jury whose exclusive province it was to ascertain the weight of the evidence, and determine the credibility of the witnesses, having found a verdict for the defendant in error, there is nothing preserved in the bill of exceptions which would warrant us in disturbing it. Judgment affirmed.