Aluminum Products Enterprises, Inc. v. Fuhrmann Tooling and Mfg. Co.

• Decision Date: 02 August 1988
• Docket Number: 53176,Nos. 53175,s. 53175
• Citation: 758 S.W.2d 119
• Parties: ALUMINUM PRODUCTS ENTERPRISES, INC., Plaintiff-Appellant-Respondent, v. FUHRMANN TOOLING AND MANUFACTURING CO., Defendant-Appellant, and Charles Werntz, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 119

758 S.W.2d 119

ALUMINUM PRODUCTS ENTERPRISES, INC., Plaintiff-Appellant-Respondent, v. FUHRMANN TOOLING AND MANUFACTURING CO., Defendant-Appellant and Charles Werntz, Defendant-Respondent.

Nos. 53175, 53176.

Missouri Court of Appeals,

Eastern District,

Division Two.

Aug. 2, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 7, 1988.

Application to Transfer Denied Oct. 18, 1988.

Michael A. Turken, St. Charles, for appellant.

J. Martin Hadican, Clayton, for respondent.

PUDLOWSKI, Judge.

Plaintiff, Aluminum Products Enterprise, Inc. [hereinafter Aluminum Products], brought an action for breach of contract and resulting damages against Charles Werntz and Fuhrmann Tooling & Mfg. Co. [hereinafter Fuhrmann]. Plaintiff contended that the defendants did not design, build and furnish all materials, tooling and labor necessary to complete certain machinery and prepare it for operation as agreed upon in their contracts. Defendants counterclaimed maintaining that there had been an agreement made at the plaintiff's request to alter the machine to allow the processing of a different type of material. The jury returned verdicts as follows: (1) On plaintiff's claim against defendant Werntz, the jury returned a verdict in favor of the defendant; (2) on plaintiff's claim against defendant Fuhrmann, the jury found in favor of the plaintiff and assessed the damages at $15,181; (3) on defendant Fuhrmann's counterclaim against plaintiff, the jury found for the plaintiff; and (4) on the claim of defendant Werntz, the jury found for Werntz and assessed damages of $2,050 against the plaintiff. We affirm.

Defendant Fuhrmann's Appeal

Defendant Fuhrmann raises three issues in this appeal. The first contends that the trial court erred in allowing unsupported or uncorroborated testimony of damages by Don Stanfill, president and sole shareholder of plaintiff corporation, who was an interested witness. Stanfill testified that the replacement value of the machinery for which he contracted was $58,700 and that the original machine had no value to him. He also testified that the scrap value of the unusable product produced by the machine during predelivery testing procedures was $4,975. In addition, Stanfill testified as to the cost of purchasing the finished product from suppliers in contrast to what the cost would have been to produce the same product had the machinery been operable. Stanfill's testimony was based in part on invoices and other business records. Although he referred to them during his testimony, the material was never offered as evidence.

In Missouri, "damages need not be established with absolute certainty, but reasonable certainty is still required as to both existence and amount and the evidence must not leave the matter to speculation." Haggard v. Mid-States Metal Lines, Inc., 591 S.W.2d 71, 77 (Mo.App.1979). "[W]here the fact of damage caused by a defendant's wrongdoing is clear, 'it is reasonable to require a lesser degree of certainty as to the amount of loss, leaving a greater degree of discretion to the jury, subject to the usual supervisory power of the court.' " Ohlendorf v. Feinstein, 670 S.W.2d 930, 933 (Mo.App.1984). Nevertheless, Fuhrmann insists that without the substantiating evidence of receipts and invoices, the jury could only have assessed the damages by reason of conjecture and speculation.

Stanfill's testimony as to the damages sustained by Aluminum Products was based on his personal knowledge of the business operations. Upon objection that a proper foundation had not been laid and that the best evidence would be the actual records, Stanfill retrieved the corporate records from somewhere in the courtroom. He referred to those records in answering some of the questions which followed. Nevertheless, the fact that a witness refers to records that contain all or part of the same information that he testifies to based on his personal knowledge does not render his testimonial evidence incompetent and an objection based on the best evidence rule is not well taken. Rusk Farms, Inc. v. Ralston Purina Co., 689 S.W.2d 671, 682 (Mo.App.1985); Central & Southern Truck Lines v. Westfall GMC Truck, Inc., 317 S.W.2d 841, 852-53 (Mo.App.1958). Plaintiff was not attempting to prove the contents of the records, books and invoices by oral evidence. Stanfill's testimony was that he had computed the damages based on his personal knowledge and experience; only after an objection did he refer to the invoices upon which his knowledge was partially based. The best evidence rule does not apply to exclude evidence based on personal knowledge even if the documents would have provided some of the same information. Id. The testimonial evidence was sufficient to provide the trier of fact with a rational basis for estimating damages to the plaintiff, including lost profits.

Furthermore, Fuhrmann contends that Stanfill's self-serving testimony supported the speculative nature of the damages; however, the weight to be accorded to the testimony of an interested witness is a matter to be determined by the jury.

Defendant Fuhrmann's second point maintains that the trial court erred in failing to grant the jury's request to view all the exhibits during its deliberations. The parties indicate in their briefs that the trial court sent to the jury Exhibits L through Z but refused to send Exhibits AA through TT.

"Disposition of a request from the jury during deliberations for exhibits used at trial and admitted in evidence rests within the sound discretion of the trial court." Gambrell v. Kansas City Chief Football Club, 621 S.W.2d 382, 386 (Mo.App.1981). As a preliminary matter, an appellant has the burden of showing that the documents were properly admitted into evidence. The exhibits at issue were offered and admitted at the conclusion of the trial with one exception which is not relevant to this appeal.

The only reference to Exhibits AA through TT during the trial came during the testimony of Charles Werntz.

Q (By Mr. Hadican) Charles, earlier this morning you had a number of drawings arranged from L down to Z. In addition to those drawings there are some more that are marked as Defendants' Exhibits A through AA through TT and there are also on the easel here, without going through each one of these, you have looked at these before today, have you not?

A Yes.

Q And are you the author of these particular exhibits?

A Yes.

Q And these particular exhibits, are they also relative to the rollers for the paneling and the roll machine?

A Yes.

Fuhrmann argues that L through Z exemplified Charles Werntz' work on the project while AA through TT related to the contribution of Fuhrmann. The only evidence on the record, however, refutes this contention because Werntz testified that the exhibits were drawings that he authored.

It is true that "[o]nce the court has received an item in evidence as an exhibit, that evidence should be made available to the jury on an equal basis with all other evidence in the case." Gambrell, 621 S.W.2d at 386. The trial court may have abused its discretion in not sending all the exhibits to the jury as requested; however, the record is not sufficient for us to make that determination. Moreover, assuming the trial court erred there is no proof of prejudice to Fuhrmann. The exhibits were never referred to during Fuhrmann's testimony. The only testimony which relates to them was that of the codefendant, who referred to the exhibits as being his work. This point is denied.

Furhmann's final assertion is that the trial court erred in giving Instruction No. 7 to the jury because it was not supported by the evidence adduced at trial. The instruction read as follows:

INSTRUCTION NO. 7

Your verdict must be for Plaintiff if you believe:

First, either:

Defendant, Fuhrmann Tooling & Mfg. Co., did not design and build, in a first class workmanlike manner, according to standard practices, one double wide v-pan machine, or

Defendant, Fuhrmann Tooling & Mfg. Co., did not design and build, in a first class workman like (sic) manner, according to standard practices, the outboard form roll dies to form Plaintiff's trim piece, or

Defendant, Fuhrmann Tooling & Mfg. Co., did not deliver to Plaintiff the completed machine, approximately ninety (90) days from receipt of the purchase order and deposit, and

Second, because of such failure, Defendant's contract obligations were not performed, and

Third, Plaintiff was thereby damaged.

We find plaintiff's verdict directing instruction is supported by substantial evidence. When considered in the light most favorable to the plaintiff, the evidence demonstrates that the parties entered into a contract on December 20, 1977. The contract, which was received in evidence at the trial, contains language remarkably similar to the instruction in question. ¹ The same language is found in plaintiff's petition.

Stanfill testified that he authorized Fuhrmann to begin work by issuing a purchase order during the last week of December. On January 6, 1978, Stanfill paid Fuhrmann $5,000. An additional $1,000 was paid in February. The amount of the required deposit was $6,000. The testimony clearly indicated that the machine was functioning from some time in May; however, it was still not fully operational in November, 1978. The part that was to shape the trim sections was never completed. Fuhrmann argues that because plaintiff cooperated with attempts to remedy the problems with the machine after the delivery date, there was not sufficient evidence that the machine was to be ready ninety days from the start of the agreement. The part that Aluminum Products was patient with the manufacturing delays does not relieve Fuhrmann of its contractual obligations. The contract sets an approximate delivery date which Fuhrmann never came close to achieving. We find that the instruction is supported by substantial evidence.

Plaintiff Aluminum Product's Appeal

Aluminum...