Bartlett v. De Graffenreid, 22585
| Decision Date | 01 October 1957 |
| Docket Number | No. 22585,22585 |
| Citation | 305 S.W.2d 906 |
| Parties | Otis BARTLETT, C. K. Graham and Claude Lanning, Respondents, v. L. L. DE GRAFFENREID and Noma Ann DeGraffenreid, Appellants. |
| Court | Missouri Court of Appeals |
Fields & Low, John A. Honssinger, John F. Low, Lebanon, for appellant.
Harry H. Kay, Eldon, for respondent.
This is an appeal by defendants from a judgment for plaintiffs who sued for $1,447.06 for breach of contract and recovered $1,104.16.
Plaintiffs Otis Bartlett, C. K. Graham and Claude Lanning alleged in their petition that in October 1953, they began the construction of a septic tank and filter bed, referred to as the system, on property which they leased from the defendants L. L. DeGraffenreid and Noma Ann DeGraffenreid (his sister), and from Gail and Oma Kidwell; that after construction of the system began defendants and the Kidwells orally agreed to pay 5/8 of the cost of its construction if the Kidwells and defendants were allowed to connect five other buildings to the system; that plaintiffs completed construction of the system and the five buildings belonging to the defendants and the Kidwells were connected thereto; that the total cost of construction was $3,472.99 and that the Kidwells had paid 1/3 of 5/8 of the cost but the defendants had refused to pay the $1,447.06 they owed.
Defendants denied the allegations of plaintiffs' petition and alleged that plaintiffs negligently constructed the system which was faulty and unworkable, and that the total cost was excessive because of mismanagement and negligence.
At the trial certain facts developed which are relatively undisputed. In the late spring of 1953, plaintiffs Graham and Lanning with Red Bartlett operated businesses at Lake Ozark, Missouri, upon lands owned by and leased from defendants and Gail and Oma Kidwell. Graham operated a tavern; Bartlett, a cafe; and Lanning a liquor store, all adjoining. Plaintiffs were obligated under their leases to provide their own sewage disposal system. The septic tank which served the buildings the three occupied was condemned by the State Board of Health, and they employed Gail Kidwell to build them a new septic tank in accordance with plans furnished by the State Board of Health. The three of them contributed money which was deposited in a special bank account against which Gail Kidwell drew checks to pay the cost of the construction of the system. Some time later plaintiff, Otis Bartlett, purchased the business of his brother, Red Bartlett, for the amount which Red Bartlett had contributed to the septic tank fund.
About April 1954, plaintiffs were advised by agents of the State Board of Health that by using a new spray nozzle arrangement on the septic tank system they were building only one-half of the originally planned filter bed would be needed, and that the resultant system would be adequate to take care of the five adjoining properties belonging to the defendants and the Kidwells. Plaintiffs contracted the Kidwells and defendants to discuss whether or not they were interested in connecting their five properties to the system. As conceded by counsel for all parties, it is undisputed that defendants, along with Gail Kidwell and his wife, agreed at this April 1954, meeting to each pay 1/3 of 5/8 of the total cost of construction of the system. This was for the reason that there were eight properties involved, with defendants and the Kidwells owning five and the plaintiffs leasing the other three properties. Defendants, of course, were to have their properties attached to the system. Thereafter, L. L. DeGraffenreid participated in the construction work, built the partition wall in the filter bed, and laid certain of the lines of the system. L. L. DeGraffenreid is a brother of defendant Noma Ann DeGraffenreid and of Mrs. Oma Kidwell. They had received title to the mentioned properties by deed from their father. Shortly after the April, 1954, meeting Gail and Oma Kidwell filed a partition suit against defendants which involved the land upon which the system was built.
As indicated by defendants' answer and as shown by the evidence, when the buildings were connected up to the system and the system was put into operation the tank and filter bed showed leaks. Substantial additional work was done on them to remedy this condition. According to plaintiffs' evidence the cost of this additional work was approximately eight hundred dollars, and this cost is included by plaintiffs in their claim against defendants.
After the system was put into operation a second meeting was called between plaintiffs and defendants to discuss payment for the cost of the system. At this meeting defendants refused to pay any part of the costs.
On this appeal defendants assert the trial court erred in the giving of Instruction No. 1, and in refusing to allow defendants to interrogate respondents about the interest of Gail Kidwell in the lawsuit to show he was an indispensable party.
Instruction No. 1, among other things, advised the jury that if they found that about October 1953, the defendants and Gail and Oma Kidwell agreed with plaintiffs that if plaintiffs would allow them to connect their buildings to a septic tank and filter bed being constructed and to be constructed by plaintiffs, defendants and Kidwells would pay 5/8 of the cost of the construction of the septic tank and filter bed, and if they further found that plaintiffs caused the septic tank and filter bed to be constructed and allowed defendants and Kidwells of connect their buildings to the septic tank and filter bed after it was constructed then they should find the issues for plaintiffs.
Defendants particular complaint is that the meeting was held in April 1954, not October 1953, and that the instruction was therefore erroneous. It is admitted by plaintiffs that the meeting referred to was held in April 1954, and that the construction of the system began in October 1953. Plaintiffs say that if the use of the words 'about October 1953' in the instruction is error, it is harmless error.
The factual background for defendants' contention is as follows: During the trial defendants contended that when the April, 1954, meeting was held the system was practically completed, and that all that remained to be done was to tie in the buildings and buy the sand. Defendant L. L. DeGraffenreid's testimony was to the general effect that plaintiffs informed them at the April, 1954, meeting that approximately $1,100 had been spent on the system at that time and that the total cost would be about $1,200. Defendant L. L. DeGraffenreid on one occasion during the trial testified to the effect that what he and his sister Oma Kidwell, thought they were agreeing to was that they would pay 5/8 of the sum of $1,200 for the privilege of attaching their buildings to the sewage system. Defendants also undertook to show that the cost of the system was exorbitant, particularly in that it so...
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