Baerveldt & Honig Const. Co. v. Dye Candy Co.

• Citation: 212 S.W.2d 65,357 Mo. 1072
• Decision Date: 14 June 1948
• Docket Number: 40426
• Parties: Baerveldt & Honig Construction Co., a Corporation, v. Dye Candy Company, Inc., a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

212 S.W.2d 65

357 Mo. 1072

Baerveldt & Honig Construction Co., a Corporation, v. Dye Candy Company, Inc., a Corporation, Appellant

No. 40426

Supreme Court of Missouri

June 14, 1948

Appeal from Circuit Court of the City of St. Louis; Hon. Robert J. Kirkwood, Judge.

Affirmed.

John F. Reinhardt, Thompson, Mitchell, Thompson & Young and Richard D. Shewmaker for appellant.

(1) The referee erred as a matter of law in holding that when work is done under a written contract which is "changed modified or abandoned" but the improvement is completed the party doing the work may recover its reasonable value without regard to the contract. The court erred as a matter of law in approving and confirming this holding of the referee. Parties to a modified contract remain bound by the contract as modified. Rescission by abandonment requires the mutual assent of the parties, and must be shown by conduct inconsistent with an intent to be further bound by the contract. City of Del Rio v. Ulen Contracting Corp., 94 F.2d 701; Williams v. Chicago, S.F. & C. Ry. Co., 112 Mo. 463, 20 S.W. 631; Ruemmeli-Dawley Mfg. Co. v. May Department Stores Co., 231 S.W. 1031; Perles and Stone v. Childs Co., 337 Mo. 448, 84 S.W.2d 1052; Fuhler v. Gohman & Levine Const. Co., 346 Mo. 588 142 S.W.2d 482; Johnston v. Star Bucket Pump Co., 274 Mo. 214, 202 S.W. 1143. (2) The court erred in approving and confirming the referee's finding of abandonment of the contract for the reason that there is no evidence in the record to sustain such finding. The court erred in rendering judgment for the plaintiff and against the defendant because there is no evidence in the record to sustain such judgment. Mood v. Methodist Episcopal Church South, 289 S.W. 461, 296 S.W. 506, 300 S.W. 30; Bowman v. C.O. Jones Building Co., 332 Mo. 520, 58 S.W.2d 718; Phillips Petroleum Co. v. Rau Construction Co., 130 F.2d 499; Schroeter Bros. Hardware Co. v. Croatian "Sokol" Gymnastic Assn., 332 Mo. 440, 58 S.W.2d 995. (3) The uncontroverted facts in the record show that the defendant is entitled to recover upon the second count of its counterclaim for payment made under mistake of fact. There is no evidence to the contrary. The court therefore erred in failing to render judgment for the defendant on the second count of its counterclaim. The court also erred in rendering judgment for the plaintiff on the first count of the counterclaim for damages for delay (as well as on the second count) because there is no evidence to show that the contract was abandoned. Williston on Contracts, sec. 1574, p. 4400; Koontz v. Central Natl. Bank, 51 Mo. 275; Federal Land Bank of St. Louis v. International Life Ins. Co., 260 S.W. 822. (4) The court should review this case upon the law and the evidence as in a case of an equitable nature. Civil Code of Procedure, Sec. 114, Laws 1943, p. 388; State ex rel. Saline County v. Wilson, 288 Mo. 315, 232 S.W. 140; Roloson v. Riggs, 274 Mo. 522, 203 S.W. 973; Coerver v. Crescent Lead & Zinc Corp., 315 Mo. 276, 286 S.W. 3; Miners Lumber Co. v. Miller, 117 S.W.2d 711; Sec. 1159, R.S. 1939; Industrial Bank & Trust Co. v. Hesselberg, 195 S.W.2d 470; Federal Rules of Civil Procedure, Rule 52. (5) The plaintiff cannot claim extras under his present pleadings. Orpheum Theater & Realty Co. v. Kansas City Casualty Co., 239 S.W. 841; Sidway v. Missouri Land & Livestock Co., 163 Mo. 342, 63 S.W. 705; 71 C.J., 115; Neeper v. Heinback, 249 S.W. 440. (6) There is no occasion to remand this case with leave to the plaintiff to amend so as to assert a claim for extras, because the evidence shows that the plaintiff could not recover anything on such new trial. Jones v. Woodbury, 50 Ky. 167; Phillips Petroleum Co. v. Rau Construction Co., 130 F.2d 499.

Edward C. Schneider for respondent.

(1) Where the contractor is prevented by the owner's acts and the numerous changes continuously made at the owner's request and directions, and the contractor performs the work demanded of him different and beyond that contemplated in the original contract, the written contract is abandoned by mutual agreement of the parties and the contractor may recover upon quantum meruit, the reasonable compensation for his work, labor, materials and services, regardless of the contract price. Fuhler v. Gohman & Levine Construction Co., 346 Mo. 588, 142 S.W.2d 482; Rodgers v. Levy, 199 S.W.2d 79; Ott v. Moore, 20 S.W.2d 166; Johnston v. Star Bucket Pump Co., 274 Mo. 414, 202 S.W. 1142; Huggins v. Hill, 245 S.W. 1105; McCullough v. Baker, 47 Mo. 401; Kelly v. Rowane, 33 Mo.App. 440. (2) The findings of the referee, when approved and confirmed by the trial court, has the same force and status on appeal as the verdict of a jury and will not be disturbed on appeal if supported by substantial evidence. Section 114 of Civil Code of Procedure applies only to cases tried by the court but not to cases tried by a referee. Sec. 1159, R.S. 1939; Industrial Bank & Trust Co. v. Hesselberg, 195 S.W.2d 470; Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262; Nodaway County v. Kidder, 344 Mo. 795, 129 S.W.2d 857; Roloson v. Riggs, 274 Mo. 522, 203 S.W. 973.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

Plaintiff obtained a judgment in the sum of $ 9,564.04 against defendant as a balance due for labor and material furnished in the reconstruction of a building which had been destroyed by fire. The court also entered a judgment in the sum of $ 2,108.87 as interest, making a total of $ 11,672.91. This sum was declared to be a lien on the building as provided for in the Mechanics' Lien Law. The court also entered a general judgment against defendant in the sum of $ 105.80 for items found not to be governed by the Mechanics' Lien Law. Defendant was denied relief on its counterclaim. Failing to obtain a new trial, defendant appealed.

This case was referred to and tried by a referee. The court overruled exceptions which were taken to the report of the referee and the report was confirmed. Appellant urges that the case is here to be reviewed and consideerd de novo on both the law and the evidence. Sec. 114 of the Civil Code of Missouri, Laws 1943, page 387, Sec. 847.114 Mo. R.S.A., is cited as authority. Respondent says that this court is bound by the finding of the referee, as confirmed by the trial court, and can only review questions of law. Sec. 1159, Mo. R.S.A., R.S. Mo., 1939, is cited as authority. It is true, as respondent contends, that before the adoption of the New Code of Civil Procedure, a finding and report of a referee, when confirmed by the trial court, had the same force and status on appeal as a verdict of a jury. Sec. 1159, supra, was so construed. See Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262, l.c. 266 (1, 2). Respondent, evidently thinking that Sec. 114 of the Civil Code may be applicable, says that the section applies only to cases tried by the court and not to cases tried by a referee. Sec. 1159 provides that if the report of the referee is confirmed by the court, ". . . judgment shall be rendered thereon in the same manner and with like effect as upon a special verdict." Note that the section does not specifically govern the question of a review of the judgment on appeal. Sec. 114, supra, prescribes the procedure to be followed in cases tried upon the facts without a jury. Subdivision (d) reads in part as follows:

"The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature."

Sec. 114, when considered alone, is all inclusive and governs cases tried by a referee as well as cases tried by a trial judge. It seems to be in conflict with the interpretation placed on Sec. 1159, supra. If we adopt the interpretation contended for by respondent and hold that cases tried by a judge are reviewable de novo as to the evidence as well as the law, and that cases tried by a referee are reviewable only on questions of law, we come face to face with the question of whether such a classification can be sustained. That question was before this court in the case of State ex rel. Saline County v. Wilson, 288 Mo. 315, 232 S.W. 140. A reading of the opinion in that case will disclose that in the year 1919 the legislature enacted Sec. 1444 R.S. 1919, which provided that all cases wherein a referee had been appointed and had made a report, the appellate court should review the evidence, finding of fact and conclusions of law of the referee and the trial court. This court in that case held the section unconstitutional because the statute applied only to cases where a referee had been appointed and heard the case. Law cases tried by a court without a jury were not included. This was deemed to be class legislation. See 288 Mo. 315, l.c. 334, where Judge Graves, speaking for the court, said:

"What is the reasonable basis for the classification made by this act? Why should one law case be tried de novo as in equity, and another law case be tried here solely upon errors, with the findings of fact binding here? To go further: Suppose after we tried the instant case de novo, we reversed and remanded it, and upon a retrial nisi, the trial court declined to refer, and tried the case, and appeal was taken by defendant, as is the case now. To the parties we would have to say we can not hear your case de novo, on this appeal, because there was no reference trial and report."

Sec 1444, supra, was repealed by the legislature in 1931. See Laws 1931, page 188. If, as above mentioned, we adopt respondent's interpretation, law cases tried by a court will be reviewed both as to the law and to the facts, but if tried by a referee they will be reviewed only on questions of law. That would be the exact converse of the law as it was under Sec. 1444, supra. However, the rule as to improper...