Rolla Lumber Co. v. Evans, 9106

• Citation: 482 S.W.2d 519
• Decision Date: 20 June 1972
• Docket Number: No. 9106,9106
• Parties: ROLLA LUMBER COMPANY, a corporation, Plaintiff-Appellant, v. Everett C. EVANS and Barbara J. Evans, Defendants-Respondents.
• Court: Court of Appeal of Missouri (US)

Page 519

482 S.W.2d 519

ROLLA LUMBER COMPANY, a corporation, Plaintiff-Appellant, v. Everett C. EVANS and Barbara J. Evans, Defendants-Respondents.

No. 9106.

Missouri Court of Appeals, Springfield District.

June 20, 1972.

Routh & Turley, B. B. Turley, Rolla, for plaintiff-appellant.

William W. Hoertel, Rolla, for defendants-respondents.

STONE, Judge.

This is a court-tried action in quantum meruit by plaintiff Rolla Lumber Company a corporation, to recover from defendants Everett C. Evans and Barbara J. Evans, husband and wife, by reason of certain materials sold and billed to one Robert Gardner, defendants' tenant, and allegedly 'affixed . . . to defendants' premises' by Gardner, 'thereby increasing the value of defendants' premises in an amount approximately equal to $1,500.' From the judgment for defendants, plaintiff appeals.

Defendants owned and resided in an old remodeled schoolhouse on a country road some 3 1/2 to 4 miles southeast of Rolla. They also owned on the opposite side of the road a tract of undisclosed size on which there were a house and two outbuildings rented to and occupied by Robert Gardner. During the period from January 10 to February 14, 1969 plaintiff sold and billed to Gardner numerous and sundry items of material for which charges were recorded on the 32 tickets or invoices offered in evidence by plaintiff. The aggregate amount of the charges on those tickets is not stated in the transcript, but witness McConnell, the manager of and a stockholder in plaintiff corporation, opined that 'the material' ran 'around fifteen hundred dollars and some odd cents.' (All emphasis herein is ours.) It was averred in plaintiff's petition that 'the materials furnished by plaintiff (were) in the total amount of $1,564.49'; but a prayer for a judgment against defendants in that sum was, by leave of court on the day of trial, amended to $1,483.46. In their statement of the case here, plaintiff's counsel inform us that 'the invoice price of goods and materials delivered to the defendants' premises was $1,433.46.' However, the charges on the 32 tickets or invoices in evidence as plaintiff's exhibit 1 aggregate $1,540.80. Setting aside this salmagundi of numerical proffers, we note more significantly (a) that there was no averment in the petition and no evidence upon trial that plaintiff's charges (whatever they may have been) were fair and reasonable, and (b) that all of the tickets or invoices in evidence show that the materials itemized thereon were 'sold to' Gardner, that most of those tickets bear his signature acknowledging receipt of the materials listed thereon, and that neither the name nor the signature of either defendant appears on any ticket.

Most of the materials sold by plaintiff to Gardner--as much as ninety per cent thereof, so plaintiff's manager thought-were delivered by plaintiff to the premises rented by Gardner. Being steadily employed elsewhere from 8 A.M. to 5 P.M. during the regular work week, defendant Everett did not witness the delivery of any of those materials. However, when he noticed materials on the rented premises and observed that some repairs and improvements were being made, he talked with tenant Gardner, who stated that 'he (Gardner) was going to pay for it.' Plaintiff's manager McConnell frankly conceded that he was looking to Gardner for payment and that he had not seen or talked with either defendant and did not know who owned the rented premises until 'sometime,' perhaps as long as two months, after the last materials had been delivered 'when we begin to wonder why' Gardner had not paid for them. Thus motivated by Gardner's failure to pay, plaintiff's manager talked with defendant Everett for the first time and then learned that he and his wife owned the rented premises. On some later date not fixed in the record, plaintiff's manager and David Hall, the home office credit manager for the chain of lumber yards of which plaintiff was one link, went to Gardner's home and conversed with him, then walked across the road and talked to defendant Everett in his yard, and in the course of that conversation informed him (so Hall testified) that 'Mr. Gardner had not yet paid us . . . and if Mr. Gardner didn't pay we would possibly look to (him).' Neither plaintiff's manager McConnell nor home office credit manager Hall ever saw or communicated with defendant Barbara.

The statement of plaintiff's counsel in the 'Argument' section of their brief that 'some of the material (sold by plaintiff to Gardner) was added to the (rented) premises' fairly reflects the state of the record on this subject. Admittedly and for obvious reasons, no witness upon trial was able to say that all such materials either were incorporated in, or were utilized in improving, the rented premises, and no one undertook to itemize or list the materials so incorporated or utilized. The person best situated to illuminate this subject, namely, tenant Gardner, had vacated the rented premises on a date not disclosed in the transcript. His father-in-law, plaintiff's witness Elbert L. Reed, who as a truck driver for plaintiff had delivered much of the materials to the rented premises, stated that at the time of trial Gardner was at Gray Summit, Missouri, but his testimony was not offered in person or by deposition. We observe parenthetically that defendant Everett said he had seen three new unopened gallon buckets of paint removed from the rented premises in Reed's automobile--a matter here recognized in plaintiff's statement of the case by the concession that 'the invoice price' of the materials sold to Gardner may be reduced by 'the value of three buckets of paint that may not have been applied to the (rented) premises.'

As recorded in the findings and judgment of the trial court and confirmed in plaintiff's brief on appeal, recovery herein is sought on quantum meruit. 'Quantum meruit means 'as much as he has deserved,' and the burden is on the claimant to plead, prove, and (where trial by jury has not been waived) have the jury instructed, that his charges are fair and reasonable.' Rodgers v. Levy, Mo.App., 199 S.W.2d 79, 82(5); Adams v. Smith, Mo.App., 307 S.W.2d 525, 527(1); Williams v. Cass, Mo.App., 372 S.W.2d 156, 161(10, 11); Woodley v. Esslinger, Mo.App., 458 S.W.2d 869, 873. See Otte v. McAuliffe, Mo.App., 441 S.W.2d 733, 736(2). Hence, failure to prove the reasonable value of services rendered or materials furnished is fatal to recovery therefor in quantum meruit. Bybee v. Dixon, Mo.App., 380 S.W.2d 539, 543(12); Williams v. Cass, supra, 372 S.W.2d at 161; Knoch v. Frye, Mo.App., 363 S.W.2d 737, 741(5); Hutchinson v. Swope, Mo.App., 256 S.W. 134, 135(4). See Service Construction Co. v. Nichols, Mo.App., 378 S.W.2d 283, 289(9).

In the case at bar, plaintiff's petition (as amended on the day of trial) averred that 'materials (were) furnished by plaintiffs in the total amount of $1,438.46' and the tickets or invoices received in evidence upon trial, which listed amounts aggregating $1,540.80, purported to reflect plaintiff's charges for those materials. But, passing the discrepancy between those pleaded and evidentiary figures, the indisputable fact remains there was not a scintilla of evidence that any of those charges were fair and reasonable. In these circumstances, the above-stated principles and supporting authorities dictated the judgment nisi for defendants.

In reaching this conclusion, we have not overlooked the novel and ingenious argument of plaintiff's counsel, wholly unsupported by cited authority, that the fair and reasonable value of the materials sold and billed to Gardner should be 'that value or amount by which the defendants' property has been increased because of the application of the material.' Even if that theory be recognized arguendo, brief reference to the...