Bickel v. Argyle Inv. Co.

• Citation: 121 S.W.2d 803,343 Mo. 456
• Decision Date: 19 November 1938
• Docket Number: 34633
• Parties: Effie Jones Bickel and Commerce Trust Company, a Corporation, Executors Under the Will of A. Bickel, Appellants, v. Argyle Investment Company, a Corporation, E. Shukert, and Commerce Trust Company, a Corporation
• Court: United States State Supreme Court of Missouri

121 S.W.2d 803

343 Mo. 456

Effie Jones Bickel and Commerce Trust Company, a Corporation, Executors Under the Will of A. Bickel, Appellants, v. Argyle Investment Company, a Corporation, E. Shukert, and Commerce Trust Company, a Corporation

No. 34633

Supreme Court of Missouri

November 19, 1938

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Affirmed.

Watson Ess, Groner, Barnett & Whittaker for appellants.

(1) The terms and extent of Bickel's obligation is determined solely by the provisions of his contract as written, and the court erred in construing the same. Mo. Edison Elec. Co v. Bry, 88 Mo.App. 138; Staluth v. Amer. Guar. Co., 81 Mo.App. 632; Webb v. Insurance Co., 134 Mo.App. 580; State ex rel. Natl. Life Ins. Co. v. Allen, 301 Mo. 637; Baldwin v. Corcoran, 7 S.W.2d 968, 320 Mo. 818. (2) The court erred in failing to hold that the delay of the respondents in filing their counterclaim for nearly five years after the institution of this suit and for more than one year after Bickel's death, established such laches in advancing the same as precluded recovery thereon. State v. West, 68 Mo. 232; Lenox v. Harrison, 88 Mo. 497. (3) Bickel cannot be charged for the cost of repairing defects in or remedying deficiencies of or making improvements or betterments upon the old structure or the heating and plumbing systems therein, as no obligation whatever in respect thereto was assumed by Bickel in his contract; and the action of the court in so charging Bickel therefor is contrary to Bickel's contract, the law and the evidence, and is clearly erroneous. Kortz v. Kimberlin, 158 Ky. 569; 2 R. C. L. 450, sec. 3; Shipman v. State, 43 Wis. 391; Snoqualmi Realty Co. v. Moynihan, 179 Mo. 646. (4) The court erred: (a) In failing to hold, as a matter of law, as requested by appellants, that the alleged claims and expenses claimed by respondents to have resulted from plumbing and heating installation were wholly compromised, settled and discharged between the respondents and the trustee in bankruptcy of McKinley Plumbing & Heating Company and that any liability of Bickel and off-set against his claim was thereby discharged. (b) And abused his discretion in failing to receive in evidence and consider documentary evidence offered by appellants on the 29th day of December, 1934, touching a question of law only, in respect to the settlement by respondents of the McKinley suit. Sims v. Construction Co., 111 Kan. 179, 206 P. 878; Rivers v. Blom, 163 Mo. 445; Smoot v. Judd, 184 Mo. 517. (5) The court erred in assessing against Bickel the cost of certain equipment which was omitted by mutual consent. (6) The court erred in allowing respondents' claim for $ 3363.75, the cost of underpinning the north wall of the old structure, for the reason that Bickel's contract did not provide for or contemplate that work. (7) There is no provision either expressed or implied in Bickel's contract that a "mail chute" would be installed by Bickel in the new addition of six stories, and the finding of the court that respondents were entitled to off-set the cost thereof against Bickel's claim is clearly erroneous. (8) The court erred in holding that Bickel had not substantially performed his contract. Jones v. Moore, 42 Mo. 419; Emery v. St. Louis, Keokuk & Northwestern Ry., 77 Mo. 350; Zerbe v. M., K. & T. Ry. Co., 80 Mo.App. 418; Dwyer v. Rohan, 99 Mo.App. 129.

Ringolsky, Boatright & Jacobs for respondents.

(1) Bickel's obligation was to arrange for and supervise the construction of the six-story addition as a loft building erected complete. He owed good faith and was required to act with reasonable care and with the combined competence of a skillful architect, engineer and contractor. Lewis v. Slack, 27 Mo.App. 119; 5 C. J. 268, sec. 22. (2) Laches is not in this case. It was not pleaded, nor relied on and the doctrine is never applied to bar a defense. Breneman v. The Laundry, 87 S.W.2d 429; Hunter v. Moore, 202 S.W. 544; 21 C. J., pp. 212, 215, sec. 212; Williamson v. Brown, 195 Mo. 313, 93 S.W. 791; Williams v. Neely, 134 F. 1; Sec. 954, R. S. 1929; State ex rel. Polk County v. West, 68 Mo. 229; Lenox v. Harrison, 84 Mo. 491. (3) This being a suit on a special contract, and not in quantum meruit, plaintiffs cannot recover for the reason that substantial performance of the contract was not proved. Eyerman v. Mt. Sinai Cemetery Assn., 61 Mo. 489; Emery v. St. Louis, Keokuk & N.W. Ry. Co., 77 Mo. 339; Jones v. Moore, 42 Mo. 413; Slyman v. Simon, 226 Mo.App. 1000, 48 S.W.2d 140; Bliss on Code Pleading (3 Ed.), p. 592, sec. 385a; 49 C. J. 314, sec. 383. (4) Respondents established numerous items of defective plumbing and heating in abatement or reduction of Bickel's claim. They also proved omission of several items originally contemplated. They also paid expense of underpinning which appellants wrongfully treated as an extra. Such items were more than double Bickel's claim and completely extinguished same. Emery v. St. Louis, Keokuk & N.W. Ry. Co., 77 Mo. 339; Winder v. Caldwell, 14 How. 434; Railroad Co. v. Smith, 21 Wall. 255; Ashley v. Henahan, 47 N.E. 573; Paturzo v. Shuldiner, 110 N.Y.S. 137; Dermott v. Jones, 2 Wall. 1; Metal Co. v. Webb Granite & Const. Co., 81 N.E. 251: Morrow Transfer & Storage Co. v. Wells Bros. Co., 26 Ga.App. 366, 106 S.E. 200. (5) The settlement of previous suit brought by the plumber and heater, McKinley, against respondents is immaterial here. State ex rel. v. Woods, 234 Mo. 16, 136 S.W. 337; Hall v. Clark, 21 Mo. 415; Wright v. Salisbury, 46 Mo. 26; Burrell v. Knight, 51 Barb. 267; 57 C. J. 517, sec. 184; Smith v. Crews, 2 Mo.App. 269; Paul v. Minneapolis Threshing Mach. Co., 87 Mo.App. 647; Lasher v. Colton, 80 Ill.App. 75; 2 C. J. 761, sec. 428; Dermott v. Jones, 2 Wall. 5; Rivers v. Blom, 163 Mo. 442.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This cause has been recently reassigned. Plaintiffs sought a judgment against defendants for $ 15,225.27, plus interest at six per cent from January 15, 1926, and sought to have the judgment declared a mechanic's lien on the real estate described, and to be superior to the lien of a deed of trust in which defendant, Commerce Trust Company, is trustee.

The cause was referred, and the referee found for defendants. Plaintiffs filed exceptions to the report of the referee. These were overruled, the report confirmed, and final judgment entered in favor of defendants. After the usual steps, plaintiffs appealed.

A. Bickel, deceased, filed this cause August 19, 1926. Bickel died April 29, 1930, and the cause was revived December 11, 1930, in the name of the executors under his will. The cause is based on a written contract executed December 8, 1924, between Bickel, operating under the name of The Bickel Contracting Company as first party and defendants, Argyle Investment Company and Shukert, as the second party.

Defendants, Argyle Investment Company and Shukert, contemplated adding six stories to the then four story Argyle building at Twelfth and McGee streets, in Kansas City, Missouri, and the contract concerned the addition of the six stories. The contract recited that defendants, Argyle Investment Company and Shukert, proposed to construct the six stories "in accordance with preliminary plans and sketch elevation, both of which are herewith submitted and approved, and specifications covering details which are hereto attached," and that first party (Bickel) "shall, from this date and until such time as the above mentioned improvements shall have been fully completed and paid for, act as agent" for the Argyle Investment Company and Shukert, "and give such time, attention and personal service as may be required in connection with arranging for and executing the contract work involved in the erection and completion of said improvements, and in and about said work shall perform all of the duties and services ordinarily performed by and expected of a general contractor."

The contract provided, among other things, that Bickel was to furnish architectural service and certain stenographic service, and was to receive $ 30,000 "as a fee" for the services performed by him. The contract recites that Bickel estimated that the cost of the improvement would be $ 285,000 and that he guaranteed that "the cost will not exceed that sum," and agreed that if the cost exceeded that sum, he would pay on such excess a sum not to exceed $ 15,000. The contract also provided that if the cost was less than $ 285,000, then Bickel was to have, in addition to the $ 30,000 fee, "one-half of such saving."

April 15, 1925, the parties entered into what was termed an "addenda to contract for loft building." The addenda concerned "the construction of tenant partitions which are not included in loft building estimate or fee." Compensation for looking after the construction of the tenant partitions was to be "cost plus ten per cent."

The cause is based on the contention that the construction of the six stories, called the loft building, exclusive of the work called for in the addenda, was $ 30,450.54 less than $ 285,000, and that, under the contract, Bickel was entitled to recover a judgment for $ 15,225.27, one-half of the alleged saving, and was entitled to have the judgment declared a mechanic's lien on the described premises, and superior to the lien of the deed of trust mentioned.

As stated, the cause was filed August 19, 1926. At the September Term, 1926, defendant, Commerce Trust Company, as trustee in the deed of trust, filed answer, alleging that the deed of trust given by the Argyle Investment Company to it as trustee, on December 1, 1924, was to secure a bond issue of $ 600,000; that the indebtedness secured by the deed of trust was unpaid; and that the lien of the deed of trust...