Baerveldt & Honig Const. Co. v. Szombathy

• Decision Date: 12 March 1956
• Docket Number: No. 1,No. 44761,44761,1
• Court: Missouri Supreme Court
• Parties: BAERVELDT & HONIG CONSTRUCTION COMPANY, a Missouri corporation, Respondent, v. Louis R. SZOMBATHY and Alice P. Szombathy, Appellants

Page 116

289 S.W.2d 116

365 Mo. 845

BAERVELDT & HONIG CONSTRUCTION COMPANY, a Missouri corporation, Respondent, v. Louis R. SZOMBATHY and Alice P. Szombathy, Appellants.

No. 44761.

Supreme Court of Missouri, Division No. 1.

March 12, 1956 Motion for Rehearing before Court en Banc Denied April 9, 1956.

Wilbur B. Jones, Sam Elson, Norman S. London, St. Louis, for defendants-appellants, Salkey & Jones, St. Louis, of counsel.

Meyer, Hoester & Coleman, Robert G. J. Hoester, Clayton, for plaintiff-respondent.

COIL, Commissioner.

The Baerveldt & Honig Construction Company, a corporation (plaintiff below), had verdict and judgment for $10,295.72 against defendants (appellants here), Louis R. and Alice P. Szombathy, representing the principal and interest thereon of a balance allegedly due plaintiff for materials and labor furnished by plaintiff in the construction of a building for defendants. Defendants contend that the trial court erred in giving instructions.

Plaintiff, engaged in the construction business, erected a one-story, concrete block building for defendants. Defendants had priorly agreed to, and did, lease that building for ten years to the United States as a post office in Berkeley, St. Louis County, Missouri. The contract or understanding between the parties pursuant to which the building was constructed was oral, but there were written plans and specifications. Construction began in September 1951 and the building was occupied on January 5, 1952.

Plaintiff's petition sought recovery on quantum meruit of a balance due for the reasonable value of the labor and materials performed and furnished which went into the completed building, and prayed that the amount found due be adjudged a mechanic's lien on the building. Defendants' amended answer pleaded, in effect, noncompletion of the building and that the completed building was defective because of cracks in the foundation walls. Defendants averred in their amended answer that these defects arose 'either from defective or insufficient materials or defective workmanship or both.' The evidence at the trial took a wide range and plaintiff, as will more fully appear, contrary to the averments of its petition, submitted its case to the jury on the theory that it was entitled to recover the amount fixed by the terms of an oral contract between plaintiff and defendants. Defendants adduced evidence, without objection by plaintiff, which, also contrary to the averments of their amended answer, supported a possible finding that the cracks in the foundation walls were due to defective plans for the result of which plaintiff was liable, and submitted their case by an instruction which did not exclude the theory (the only theory supported by defendants' evidence) that defendants were not liable to plaintiff for and amount it would cost to remedy the defects in the foundation walls resulting from defective plans.

A proper disposition of this appeal does not require a detailed review of much of the evidence contained in a long transcript. We shall, however, indicate enough of the evidence to make clear the trial theories of the parties and the basic disputes between them.

Plaintiff's evidence tended to show that the oral contract as to the cost of the building was this: plaintiff was to receive the cost of all labor plus 10% thereon for taxes and insurance, the cost of all materials furnished either directly or through subcontractors, plus 10% on the total figure (labor and materials) thus arrived at for overhead and profit. Defendants' evidence as to the pertinent details of the cost arrangement was this: plaintiff was to construct the building on a cost-plus-10% basis with a ceiling on the total cost of $25,280.

Plaintiff's evidence further showed that the statements attached to its petition correctly reflected the status of the account between the parties in accordance with plaintiff's version of the oral agreement. That statement indicated that the total cost was $27,881.33 (not including an item of $1,680 for the installation of the heating system which, by agreement, was done by defendant, Louis Szombathy, whose business was heating, ventilating, and sheet metal, and for which defendants were to receive credit against either the total cost, from plaintiff's standpoint, or against the ceiling price, from defendants' standpoint). The statement further showed that defendants had made payments on account in the total sum of $16,814.83, leaving a balance due in the sum of $11,066.50.

Defendants did not substantially dispute that the labor and materials reflected on plaintiff's itemized statement had in fact gone into the building (although they may have questioned the propriety of a few of the charges with which we are not here concerned). Defendants' position was that the building was not completed or properly constructed and that the cost to defendants of completing the building and replacing the defective portions should be offset against any amount which was due from defendants to plaintiff. To support that position, defendants adduced evidence to the effect that they had expended the sum of $235 for waterproofing and painting which work should have been done by plaintiff but which plaintiff had refused to do when requested, and that the concrete foundation walls had cracked due to insufficient reinforcing steel in them and that to replace the east and south foundation walls would cost $6,000 to $6,500.

Other evidentiary details will be discussed in connection with our consideration of instruction 1 which was: 'The Court instructs the jury that if you find and believe from the evidence that the work and labor as charged for in the plaintiff's bill of items as shown in evidence, was done and performed by the plaintiff and its employees, under and pursuant to an oral contract by and between plaintiff and defendants, if you so find, and if you further find that the said contract was a cost plus 10% contract, for a maximum amount of $25,280.00 plus $1,000.00 for any changes in plans, if you so find, and if you further find that at the instance and request and with the consent of the defendants, there were extra items of material and labor furnished by the plaintiff in the amount of $2,167.63, then you will find for the plaintiff in the amount of $25,280.00, adding thereto the reasonable value and worth of any extra items of labor and material, as shown in evidence, not to exceed $2,167.63, and from said total amount you will deduct $18,494.83 as a credit to the defendants, as shown in evidence, and you will then award the plaintiff the net amount with interest at the legal rate of 6% per annum.'

It should be noted that plaintiff, by the foregoing instruction, partially adopted defendants' version of the price contract, i. e., plaintiff hypothesized that a ceiling price of $25,280 was the basic price agreement.

Defendants here contend that the foregoing instruction was erroneous because it omitted the requirement of an essential finding prerequisite to plaintiff's recovery, viz., that the building was completed in a workmanlike manner. Plaintiff contends that such a finding was not essential to plaintiff's recovery under the evidence in the instant case.

Defendants correctly assert that in every contract to perform work there is an implied agreement that the work will be done in a skillful and workmanlike manner. See 17 C.J.S., Contracts, Sec. 329, p. 781; Brush v. Miller, Mo.App., 208 S.W.2d 816, 818; Kennedy v. Bowling, 319 Mo. 401, 417, 4 S.W.2d 438, 445[9, 10]; John O'Brien Boiler Works Co. v. Sievert, Mo.App., 256 S.W. 555, 557[1-5]. Defendants say, therefore, that the disputed issue was whether the building was completed properly or defectively; and that plaintiff's instruction 1, in effect, directed a verdict for plaintiff without requiring any finding on that issue.

Plaintiff answers by asserting, in effect, that all the evidence showed that the building was constructed in exact accordance with plans and specifications approved by both plaintiff and defendants as well as by the postal authorities; more specifically, that the exact kind and quantity of steel reinforcing called for by the agreed plans was placed in the concrete foundation walls in a workmanlike manner, and that, therefore, there was no issue for the jury as to whether the work was properly done.

It does appear, as plaintiff suggests, that both plaintiff's and defendants' evidence showed that the building was constructed according to plans and specifications which were drawn (with the exception of the plans for the heating installation concededly drawn by defendant Louis Szombathy) by plaintiff's agent; that those plans were approved, generally at least, by defendants and by the prospective lessee, the United States; that defendants did not offer evidence at the trial to the effect that the building had not been constructed in accordance with those plans; that defendants offered no evidence to the...