Bash v. B.C. Const. Co., Inc., WD
| Decision Date | 05 December 1989 |
| Docket Number | No. WD,WD |
| Citation | 780 S.W.2d 697 |
| Parties | Jeff BASH, d/b/a, J & K Bash Excavating, Respondent, v. B.C. CONSTRUCTION CO., INC., Appellant. 41464. |
| Court | Missouri Court of Appeals |
Joel B. Laner and Charles M. Thomas, Swartzman, Thomas, Hazelton, Laner & Batson, Kansas City, for appellant.
James C. Jarrett, Kansas City, for respondent.
Before MANFORD, P.J., and SHANGLER and CLARK, JJ.
Respondent sued appellant on an account for site grading done in preparation for erection of a building and other improvements. The petition asserted that the reasonable value of respondent's services was $9,538.00, of which amount $4,181.94 had been paid. Recovery of the balance amounting to $5,356.06 was sought. The trial court awarded judgment as prayed and defendant has appealed. Reversed.
Appellant and respondent entered into a written contract for excavation work based on respondent's bid of $6,638.00 for the job. According to respondent's evidence, he performed all of the work except "backfilling" in certain areas where curbs had not been completed. A dispute arose between respondent and appellant's foreman as to whether this work could be finished before all of the curbs were in and, in consequence, respondent left the job unfinished.
The parties also were in dispute as to whether respondent was entitled to payment above the contract price for extra work in removing dirt from the site. It was respondent's testimony that he originally bid the job on the assumption that excavation and fill would balance resulting in no need to remove any dirt from the improvement area. Later, however, because of a change ordered in elevation, a quantity of dirt had to be removed for which respondent supplied a truck and loader. Appellant disputed the estimate by respondent that the original bid contemplated no removal of dirt and he also denied that any elevation change had been ordered.
The judgment awarded to respondent the sum of $2,456.06, amounting to the difference between the contract price and the sum actually paid by appellant, and the additional amount of $2,900.00 calculated to be extra compensation for regrading a sidewalk and for removal of dirt which plaintiff contended were not included in the original contract work.
Appellant first argues that the grant of judgment to plaintiff of $2,456.06 was erroneous because the basis for calculation of the award was to order payment of the contract price without any evidence of damages sustained on account of breach of the contract. Alternatively, if the sum was responsive to plaintiff's claim in quantum meruit, it cannot stand under appellant's contentions because no proof was offered as to the value of services performed under the contract.
Plaintiff's claims and the judgment by the trial court suffer a common deficiency in that proof was not presented to support the cause of action pleaded for the value of services furnished. In both segments of plaintiff's claim, it was not contended that appellant owed payment of the contract price because the agreed facts were that plaintiff did not complete the work called for by the contract and, as to the second segment, that the work in removing the dirt was outside the contract and not measurable by reference to the contract price. Despite this, however, the only specific evidence of value of the services rendered by the plaintiff was the contract.
Quantum meruit recovery is limited to the reasonable value of services performed, plaintiff has the burden of proving this reasonable value and expert testimony is required to assist the finder of fact in determining reasonableness. Baron v. Lerman, 719 S.W.2d 72, 77 (Mo.App.1986). Where there is a contract setting the amount payable for the services, a recovery may be had in quantum meruit, but not to exceed the contract price. C.H. Robinson Co. v. Frissell, 132 S.W.2d 1049, 1052 (Mo.App.1939). Where the plaintiff does not repudiate the contract but sues in quantum meruit and offers the contract as prima facie evidence of the value of the services, he may rely on that proof to show reasonable value. Julian v. Kiefer, 382 S.W.2d 723, 727-28 (Mo.App.1964).
If it be assumed in the present case that the breach of the contract was attributable to appellant and that it therefore may claim no damages offsetting plaintiff's claim, the action for payment of services rendered under the contract, by way of quantum meruit, fails for want of proof of value. It is true, as the above authorities say, that the contract price is evidence of reasonable value, but that principle is...
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