Cox v. City of Freeman, Missouri, 17196.

Decision Date19 July 1963
Docket NumberNo. 17196.,17196.
Citation321 F.2d 887
PartiesLester COX, Appellant, v. CITY OF FREEMAN, MISSOURI, and C. Kenneth Maib, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Rodger J. Walsh Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, Mo., for appellant.

Charles V. Garnett, Kansas City, Mo., for appellees.

Don F. Whitcraft, Harrisonville, Mo., for appellee City of Freeman.

Charles V. Garnett and Dan Boyle, Kansas City, Mo., for appellee Maib.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and YOUNG, District Judge.

YOUNG, District Judge.

This is a diversity action brought by Cox, a citizen of Kansas, against the City of Freeman, Missouri, and Maib, a citizen of Missouri.

This action arises out of an agreement between the appellant, Lester Cox, and the City of Freeman, Missouri, under which Cox contracted to build the City a waterworks. This contract was let in four parts; an agreement to build Parts I, II, and IV of the waterworks was entered into on the 28th day of April, 1959, and the contract to build Part III was dated June 10, 1959. Part I was the distribution system or water lines in the city. Part II was the earth-filled dam for the lake, Part III was for the purification plant, and Part IV was for the water storage standpipe or water tower.

There is some dispute as to whether Cox had 90 days to finish the whole contract or 90 days for each Part, but, at any rate, Cox received written notice to proceed with portions of the contract on August 5, 1959, and he then had 15 days to commence work on the job; the State Department of Health approved the waterworks on May 4, 1960, and an extension of time to paint was granted until August 5, 1960.

Sometime around the middle of June 1960 it became obvious that the parties were in disagreement about the amount of money which the City owed Cox; Cox contending that the City owed him $10,303.34, and the City demanding that the bill be reduced because of delays in the completing of the job. On June 19, 1960, the City officials, Maib (City Engineer), and Cox attended a meeting to negotiate a final settlement. At this meeting an "Agreement" was entered into which stipulated, inter alia, the City owed Lester Cox $73,315.20 on the contract less $68,188.05 already paid, leaving a balance due of $5,127.15 subject to certain conditions which were then set out;1 included in this list was a qualification referring to provision No. 1.18 of the original construction contract. This provision provided for a deduction from the final payment to Cox damages incurred by the City caused by the contractor's delay in completing the water-works.2

On September 28, 1960, the defendant Maib wrote Cox a letter in which he said: "In keeping with the General Conditions of the Agreement and supplement agreement dated June 15, 1960, relative to the captioned project I have certified to the owner final payment to you as follows: * * *." Maib then went on to list the debits against the $5,127.15 mentioned in the June 15th instrument;3 included in this list are charges against Cox for painting, minor repairs, and one unexplained entry to "Troth Plumbing Co.," which come to a total of $468.00, but by far the largest debit is the "penalty" due for the alleged four and one-fifth months' overtime, which amounts to $3,956.40. The debits listed, subtracted from the $5,127.15, leave a "Net amount due Cox Trenching" of $702.75. Maib enclosed three checks4 made out to Cox and, in two cases, other parties, which totaled the $702.75 which Maib alleged that the City owed Cox.

At the trial Cox testified that he received the checks just mentioned and "cashed them or paid the indicated checks to suppliers."

On September 29, 1960, Cox filed a complaint against the City and Maib. Cox sued the City, alleging that it still owed him on the contract, and in tort for negligently hiring Maib and for the alleged negligence of Maib under the doctrine of respondeat superior.5 Cox sues Maib in tort contending that Maib, acting as the agent, servant, and employee of the City, was negligent in that he caused, while acting as engineer, certain "unnecessary delays to the plaintiff in completing the contract * * *." These alleged delays were that Maib:

"(a) Caused an unnecessary delay on the completion of the line to the lake by his failure to have the necessary engineering completed before the City gave the written notice to start work and damaged the plaintiff in the amount of Six Thousand Four Hundred ($6,400.00) Dollars;
"(b) Caused an unnecessary delay on the location of the tower site by his failure to have the necessary engineering completed before the City gave the written notice to start work, and damaged the plaintiff in the amount of Two Thousand ($2,000.00) Dollars;
"(c) Caused an unnecessary delay on the location of the plant site by his failure to have the necessary engineering completed before the City gave the written notice to start work, and damaged the plaintiff in the amount of One Thousand Three Hundred Thirty-two ($1,332.00) Dollars;
"(d) Caused an unnecessary delay on the trenching of rock near Highway 2 by his failure to have the necessary engineering completed before the City gave the written notice to start work, and damaged the plaintiff in the amount of One Thousand Seven Hundred Four ($1,704.00) Dollars;
"(e) Caused an unnecessary delay on the completion of the contract by his negligence and carelessness in over-pressuring the water lines, in rupturing the lines by putting pressure in the lines exceeding the amount specified in testing, in failing to engineer a surge chamber for the high service pump and damaged the plaintiff in the amount of Two Thousand ($2,000.00) Dollars;
"(f) Caused an unnecessary delay on the completion of the contract by failing to appoint qualified resident engineers or inspectors and by failing to be present on the project or to be located, the numerous discrepancies in the contract, drawings and specifications could not be resolved and the plaintiff was damaged thereby."

It is apparent that almost the entire dispute between the parties concerns whether or not Maib or the City, through Maib, acted with such negligence that Cox was delayed in his work and was thereby damaged. It is true that if there was negligence on the part of Maib, both he and the City would be liable except for the possibility of an accord and satisfaction, Maib as a tort-feasor and the City under the doctrine of respondeat superior.

On March 8, 1962, the defendants separately moved for summary judgment, alleging that the June 15th agreement and the September 28, 1960 letter, with checks attached, from Maib to Cox amounted to an accord and satisfaction. Judge Gibson overruled the motions for summary judgment primarily because the June 15th document was without "sufficient specificity" to be capable of enforcement. The Court went on to hold that the letter of September 28, 1960, along with the checks enclosed, could amount to an accord and satisfaction if plaintiff had accepted the checks as full payment of the obligation, but, Judge Gibson went on to say, "the mere retention of a check by a creditor will not amount to an accord and satisfaction, without some use or cashing of the check by the debtor." At this time there was no evidence that Cox had cashed or otherwise used the three checks enclosed in Maib's letter.6

The case went to trial, and at the end of the plaintiff's case the trial court directed a verdict against the plaintiff. Cox has appealed the District Court's decision.

Plaintiff contends that the trial court erred in directing a verdict for the defendant because it deprived him of right of trial by jury which is guaranteed by the Seventh Amendment to the United States Constitution. This argument is not legally nor practically sound. A directed verdict does not deprive the plaintiff of any right guaranteed to him by the Seventh Amendment to the United States Constitution. Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943), see Part III of the opinion. Further, Cox is precluded from raising this Constitutional issue here, as he failed to do so below. Sutton v. Settle, 302 F.2d 286 (8th Cir. 1962).

Plaintiff next contends that the defendants did not state specific grounds for their motions for a directed verdict as required under Rule 50(a)7 of the Federal Rules of Civil Procedure, and the City did not allege the accord and satisfaction nor did the City plead the document entered into on June 15, 1960, or the letter from Maib to Cox on September 28, 1960. For authority to support this contention the plaintiff relies upon a line of cases which hold that when a movant fails to state specific grounds for the motion he cannot contest the denial upon appeal. 2B Barron and Holtzoff § 1073 n. 11. In the next sentence, however, Barron and Holtzoff declare that: "Conversely, if such a motion is granted, the adverse party who did not object to failure of the motion to state specific grounds therefor cannot raise such objection in the appellate court." 2B Barron and Holtzoff § 1073, n. 12. Quint v. Kallaos, 161 F.2d 605 (8th Cir., 1947) is cited as authority for this proposition. This would appear to be the soundest doctrine; it would certainly be an unfair and dilatory practice to allow a plaintiff to raise this issue at the appellate level after remaining silent when the trial judge makes his decision. In addition, it would abrogate the settled rule that issues which are not raised at trial cannot be presented on appeal. See Kern v. Prudential Insurance Company of America, 293 F.2d 251 (8th Cir. 1961); Sutton v. Settle, supra. We hold that an adverse party who does not object at trial to his opponent's failure to state a specific grounds for a motion for a directed verdict will not be heard to complain of this lack of specificity on appeal.

Although the record is not completely clear with regard to the reason for trial...

To continue reading

Request your trial
27 cases
  • Simpson v. Union Oil Company of California
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 12, 1969
    ...This constitutional claim was not raised below and cannot be considered here, Williamson v. Weyerhaeuser, supra; Cox v. City of Freeman, 321 F.2d 887, 891 (8 Cir. 1963). Likewise a court may set aside a verdict without constitutional encroachment. Neither the granting of the new trial nor t......
  • Daigle v. City of Portsmouth
    • United States
    • Supreme Court of New Hampshire
    • August 6, 1987
    ...... Again, Cox v. City of Freeman, 321 F.2d 887 (8th Cir.1963), recognized, not the offensive collateral estoppel asserted by Daigle, ......
  • Orthokinetics, Inc. v. Safety Travel Chairs, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • December 5, 1986
    ...In view of Orthokinetics' failure to raise an objection before the district court, we will consider the issue. Cox v. City of Freeman, Missouri, 321 F.2d 887, 891 (8th Cir.1963). The district court determined that, because Safety was told by a dealer of a district court's ruling in another ......
  • BLB Aviation S.C., LLC v. Jet Linx Aviation LLC
    • United States
    • U.S. District Court — District of Nebraska
    • September 27, 2012
    ...[payment] enclosed should ... be considered in determining whether or not there is an accord and satisfaction.” Cox v. City of Freeman, Mo., 321 F.2d 887, 892 (8th Cir.1963) (emphasis added). On June 23, 2008, Barry Bellue stated he received a billing statement related to N789DJ and asked B......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT