Adams v. Smith
| Decision Date | 02 December 1957 |
| Docket Number | No. 22633,22633 |
| Parties | George L. ADAMS, Respondent (Plaintiff), v. Clyde M. SMITH, Appellant (Defendant). |
| Court | Missouri Court of Appeals |
Francis G. Hale, Robert E. Coleberd, Liberty (Arthur R. Kincaid and William B. Waters, Liberty, of counsel), for appellant.
Harry v. Jenkins, Liberty, for respondent.
This is an action for the alleged balance due plaintiff for the construction of a building for the defendant. Because of the issues raised on appeal, we state the material allegations of the petition.
It alleges that plaintiff is a building contractor; that on or about November 24, 1954, defendant employed plaintiff to build and construct a one-story building in Liberty, Missouri; that plans were presented to plaintiff, and plaintiff agreed to construct said building, as provided and required by said plans, for $7,850; that a written contract was executed by plaintiff and defendant; that said contract contemplated the building be constructed according to the plans furnished; that accordingly, plaintiff commenced work on said building and immediately thereafter, ; for which amount plaintiff prays judgment.
Copies of the original written contract, and of the items of February 7th and February 16th claimed to be due were attached to the petition. The items claimed are as follows:
"Payroll ending February 4, 1955 $ 100.25
6% Social Security and Insurance (26.00) 1.56
---------
$ 101.81
Materials
Liberty Lumber Co. invoices delivered 484.74
Contractor's overhead and commission
10% 58.66
---------
Total $ 645.21
Payroll ending February 15, 1955 $ 76.00
6% Soc. Sec. and Ins. 1.92
---------
77.92
Materials and sub-contracts
Leo Adams Plumbing and Heating Co. 585.26
Liberty Plbg. Co. 195.00
Material and labor for laying asphalt
tile and base 336.00
Anderson Hardware 4.23
Liberty Lumber Co. 15.81
---------
$1204.22
Contractor's overhead and 10% commission 120.42
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$1324.64"
The total of these two items is $1,969.85, but plaintiff gives credit for $695, as shown in the petition, leaving the claimed balance $1,274.85.
Defendant's answer alleged that plaintiff's petition failed to state facts upon which any relief could be granted, and asked for dismissal of the petition. The answer admitted that defendant 'did some work on and furnished some material for the construction of a business building * * * for defendant'; but denies all other allegations of the petition.
The defendant also filed a counterclaim in two counts. The first alleges that the defendant had inadvertently and by oeversight paid the plaintiff the sum of $5,810.96 in excess of the amount of work done and materials furnished by plaintiff. The second court alleges that defendant had employed plaintiff to construct a certain building and to furnish the labor and material therefor; that plaintiff was to construct said building in a workmanlike manner with sound material; that plaintiff did some work and furnished some material for the construction of said building, but failed to perform said work in a good workmanlike manner, and alleges certain specific deficiences, and prays for judgment of $5,000 on the second count. The reply was a general denial.
The jury returned a...
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