Baerveldt Construction Co. v. Bagley
| Decision Date | 30 November 1910 |
| Citation | 132 S.W. 688,231 Mo. 157 |
| Parties | BAERVELDT CONSTRUCTION COMPANY, Appellant, v. NOBLE R. BAGLEY et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel G. Taylor Judge.
Affirmed.
Bernard Greensfelder for appellant.
Jas. S Sutherland, Richard A. Jones and David W. Voyles for respondent N. R. Bagley.
Plaintiff, a corporation, sued in two counts to recover a balance claimed to be due it for labor and materials which entered into the construction of a certain building, under a contract with the defendant Bagley, and to establish a mechanic's lien on the building: the first count was a declaration on quantum meruit, the second on the contract. The balance claimed in the petition is $ 7038.52 with interest from September 15, 1904, when it became due and demand was made. The suit was begun January 17, 1905; the judgment was rendered June 8, 1906. The cause was tried by the court, jury waived; the finding and judgment were for the defendants and the plaintiff appealed. It is unnecessary to set out the pleadings, as no point on that phase of the case is made, and the points in controversy will sufficiently appear from a statement of the facts. No instructions were asked or given. The plaintiff filed its claim for a mechanic's lien in due time and due form. There is but little, if any, dispute as to the principal facts in the case.
The land on which the building was to be erected was owned by defendant Bagley. The contract price of the building, when completed according to specifications, was $ 28,913.75. The building was completed and delivered to Bagley, in all respects according to the contract, except that it was not completed within the time specified. It was specified that for every day of delay in the completion beyond the date named the contractor should pay twenty dollars as liquidated damages. At that rate there was delay enough to make the sum to be so paid amount to eighteen hundred dollars and the defendant Bagley in his answer claimed that amount as a counterclaim or off-set, but the evidence showed justifiable cause for the delay, therefore the court found against him on that item; the judgment to that extent was for the plaintiff, and no appeal was taken by defendant.
During the progress of construction there was paid to the plaintiff sums aggregating $ 21,875.23, leaving a balance of $ 7038.32 to be settled. The contract required the plaintiff to pay for all the labor and materials employed and used by him in the building so as to protect it against mechanics' liens, but he allowed bills of that kind to accumulate to the amount of $ 3515.30 and liens for such bills to be filed. These bills defendant Bagley paid and was therefore entitled to recover that sum of plaintiff or deduct it from the balance due plaintiff, if there was such balance. Bagley set up a counterclaim for that sum.
At the time of entering into the building contract the parties made another agreement in writing whereby defendant Bagley was to convey to plaintiff, or to whom plaintiff might designate, certain real estate on Page Avenue in the city which the plaintiff was to receive, at the agreed valuation of $ 6,800, in payment to that extent on the price of the building contract. A deed in due form was made by Bagley and wife to Johanna Baerveldt, the person for that purpose designated by the plaintiff, and was, by agreement of the parties, placed in the hands of the Maguire Real Estate Company to be delivered to the grantee when the plaintiff completed its contract.
By the terms of the second agreement it was specified: "that the consideration in said deed being $ 11,800, less an existing deed of trust for $ 5000 on said property, leaving an equity of $ 6800, which $ 6800 is accepted as a cash payment on contract," etc. -- the building contract above mentioned.
There is this difference between the recitals in the deed and those in the agreement, namely: in the deed it is specified that the property is conveyed with covenants of warranty of title "except as against taxes, special and general, for the year 1904, and a certain deed of trust on lots 19 to 23 inclusive to secure payment of five thousand dollars which the said party of the second part [Johanna Baerveldt] covenants and assumes to pay as a part of the consideration of this deed," whereas in the agreement there is no mention of taxes. The deed had been drawn, signed and acknowledged before the execution of the agreement and Mr. Baerveldt testified that he objected to the mention of taxes therein, and that the written agreement, specifying only the five thousand dollar deed of trust to be assumed by the grantee, was so worded to comply with his objection. Plaintiff offered in evidence a certificate of title from a title examiner which showed that certain taxes for the year 1904 were delinquent, but on objection by the defendants the offer was withdrawn, and the certificate was not afterwards introduced in evidence, otherwise than it was attached as an exhibit to the plaintiff's motion for a new trial.
After the building was completed the plaintiff demanded of the Maguire Real Estate Company the deed held by it in escrow, but that company refused to deliver it then because of the unpaid bills for labor and materials above mentioned, which bills Bagley afterwards paid. After that, how long after is not shown, the Page avenue land described in the deed held by the Maguire Real Estate Company, or that part of it which was covered by the five thousand dollar deed of trust, was sold under foreclosure of the trust and the title passed to a stranger.
The court found that the contract price of the building was $ 28,913.75, on which plaintiff had been paid $ 21,875.23 leaving unpaid in cash $ 7038.52, against which plaintiff was chargeable with the agreed price of the land covered by the deed in escrow, $ 6800, leaving due him $ 238.52. That there was due the defendant Bagley $ 3515.30 for the bills for labor and...
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