321 F.2d 887 (8th Cir. 1963), 17196, Cox v. City of Freeman, Mo.

Docket Nº:17196.
Citation:321 F.2d 887
Party Name:Lester COX, Appellant, v. CITY OF FREEMAN, MISSOURI, and C. Kenneth Maib, Appellees.
Case Date:July 19, 1963
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 887

321 F.2d 887 (8th Cir. 1963)

Lester COX, Appellant,

v.

CITY OF FREEMAN, MISSOURI, and C. Kenneth Maib, Appellees.

No. 17196.

United States Court of Appeals, Eighth Circuit.

July 19, 1963

Page 888

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 and 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

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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 waterworks. 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 checks 4 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 '-

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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...

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