Berra v. Papin Builders, Inc.

• Decision Date: 11 February 1986
• Docket Number: No. 49334,49334
• Citation: 706 S.W.2d 70
• Parties: John H. BERRA, Plaintiff, v. PAPIN BUILDERS, INC., Defendant-Appellant, v. William NAHN and Shirley Nahn, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 70

706 S.W.2d 70

John H. BERRA, Plaintiff, v. PAPIN BUILDERS, INC., Defendant-Appellant, v. William NAHN and Shirley Nahn, Defendants-Respondents.

No. 49334.

Missouri Court of Appeals,

Eastern District,

Division Seven.

Feb. 11, 1986.

Motion for Rehearing and/or Transfer

Denied March 11, 1986.

Stephen Michael Prosperi, Clayton, Mo., Belinda Jean Buchanan, St. Louis, Mo., for defendant-appellant.

Scott O. Marshall, David L. Welsh, St. Louis, Mo., for defendants-respondents.

KAROHL, Presiding Judge.

Defendant, cross-claimant and general contractor, Papin Builders, Inc. (Papin), appeals judgment in favor of defendant property owners, William Nahn and Shirley Nahn, (Nahns), on claim for breach of construction contract, and request for a mechanic's lien. Plaintiff, John H. Berra, d/b/a John H. Berra Construction Company, a subcontractor, obtained a judgment against Papin and the Nahns in the sum of $11,620.88 with interest and costs, and a mechanic's lien to secure the judgment. The trial court entered a judgment in favor of Papin, and against the Nahns on Nahns' cross-claim alleging slander of title. It denied Papin's cross-claim without findings, conclusions or comment. The judgment in favor of John H. Berra has been satisfied. Only Papin has appealed.

On September 22, 1982, Papin and the Nahns executed a written contract which provides in pertinent part as follows:

Item 1. The Contractor [Papin] shall complete but not limited to grading, sewers, and engineering for the entire project. Complete the paving in the first phase which includes the entrance, main drive, cul-de-sac and the driveway paving necessary to complete display units. Balance of paving to be done as units are built.

Item 2. Do the development work in a timely manner.

Item 3. Construct three (3) display units in building number one (1) and finish to Owner's [Nahn] satisfaction. Balance of units to be constructed after being sold and under contract.

Item 4. Payments to Papin Builders, Inc., to be made as follows:

1. Development work to be paid for as work progresses and bills are received at Papin Builders, Inc. Bills will be submitted to Webster Groves Trust Co., for payment with copies of invoices lien waivers, 15% overhead and 12% profit.

2. Cost of units will be paid to Papin Builders, Inc., as follows:

a) Upon foundation completion

b) Upon roof completion

c) Upon drywall completion, and

d) Upon finish of units

Bills submitted to Webster Groves Trust Co. will include copies of invoices, lien waivers, 15% overhead and 10% profit.

The Nahns acquired the property by deed from Shirly Nahn's mother in July 1982. Prior to the written contract, and before and after July 1982, Papin had begun to develop the subject property on "Telegraph and Highway 270" as a residential development to be known as Williamstowne Terrace Condominiums. Papin had incurred expenses including the cost of survey work and engineering, plans, drawings, blueprint preparation, site work and wages. Also prior to the written contract, Papin had invoiced to William Nahn Company various services pertaining to the property. On September 13, 1982, Papin entered into the contract with Berra Construction Company for grading work. This contract was the basis on which Berra obtained a money judgment against Papin supported by a mechanic's lien on Nahns' real estate.

The total estimated cost for development was $375,000. The Nahns "accepted" a loan commitment from Webster Groves Trust Company in the amount of $200,000. The written contract was prepared and executed by the Nahns and Papin at the request of the trust company. According to the written contract, disbursement of the loan was to be on invoice submitted to Webster Groves Trust Company. No funds were used pursuant to the loan commitment, and subsequent loan applications were either rejected by banks and lending institutions or not accepted by the Nahns.

On October 26, 1982, Berra began grading work under the subcontract. On November 5, 1982, Papin instructed Berra to stop further work because Papin believed the Nahns had failed to secure adequate financing to continue the development. Berra had completed an estimated 40% of the grading and excavation work. On November 17, 1982, Papin ceased work on the property because it "got uncomfortable with the thought that there wasn't going to be a loan provided for the construction on the project." Papin did not advise the Nahns that it was going to abandon the project, only that it had stopped work. The Nahns never directed Papin Builders to continue or resume development work after November 17. On February 23, 1983, Berra filed a mechanic's lien to secure payment for work completed on the property.

On March 17, 1983, Papin sent an invoice addressed to Mr. and Mrs. William Nahn for $32,167.07. This included a claim of Berra Construction Company for $9,500. All prior invoices from Papin had been addressed to "Wm. Nahn Co." at the home address of the Nahns. On May 17, 1983, Papin filed a mechanic's lien statement and attached as exhibits the written contract of September 22, 1982, and a statement of account with charges beginning on November 6, 1981, and concluding on April 10, 1983. The statement of account included charges for overhead and profit under the written contract of September 22, 1982. The total amount of the claim was $40,541.90, including $9,500 for Berra, and $8,619.14 for overhead and profit.

On May 27, 1983, the Nahns paid Papin $6,686 on the account. At the same time, Papin paid the Nahns $6,686 on a separate obligation. The parties swapped "checks" in the same amount.

On June 23, 1983, Berra filed suit on the subcontract, and to enforce its mechanic's lien. Subsequently, Papin filed a cross-claim on its contract with the Nahns, claiming a mechanic's lien, and the Nahns filed a cross-claim for slander of title. The present appeal by Papin is from an adverse judgment entered on September 10, 1984, entered by the trial court without findings of fact or conclusions of law. We, therefore, do not know and do not have the benefit of the trial court's view of the facts and law.

Our review is governed by Rule 73.01 as construed in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The judgment of the trial court will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. We defer to the trial court's opportunity to adjudge the credibility of witnesses. Cook v. Lodes, 560 S.W.2d 64, 65 (Mo.App.1977).

Papin first argues that it was entitled to judgment as a matter of law on the theory of quantum meruit. To recover on that theory, plaintiff must plead and prove that it provided to defendant materials or services at the request or with the acquiescence of defendant, that those materials or services had a certain reasonable value, and that defendant despite demands of plaintiff, has failed and refused to pay the reasonable value of those materials and labor. Berra v. Bieg Plumbing Company, Inc., 584 S.W.2d 116, 118 (Mo.App.1979), and cases cited therein.

The cross-claim alleged that the parties executed a certain written construction contract on September 22, 1982, that materials and labor were furnished by Papin at the special instance and request of and under contract with defendants Nahn; that Papin invoiced its request for payment pursuant to the provisions of said contract; and, that the account constitutes one continuous running connected account for labor and materials furnished in strict compliance with the instructions and directions of defendants Nahn pursuant to the provisions of the construction contract. The cross-petition refers to services under oral agreement pre-dating "the written memorial" set forth in the written contract. Further, both the lien statement and the cross-claim of Papin requests overhead and profit "per contract."

We find that the cross-claim filed by Papin is founded only in contract. Accordingly, we need not address the Nahns' position that if a petition alleges an express contract, there can be no recovery on quantum meruit. See O'Neal v. Mavrakos Candy Co., 255 S.W.2d 138, 140 (Mo.App.1952). We do not find the cross-claim to be unclear so as to entitle Papin to judgment on either the theory of quantum meruit or express contract depending upon whichever theory the evidence supports. See Johnson v. Estate of Girvin, 414 S.W.2d 245, 248 (Mo. banc 1967). Papin pleaded and relied only on allegations of express contract, and the trial court did not err for failure to grant a money judgment, as a matter of law, on the not pleaded theory of quantum meruit.

Papin next contends that on its pleadings, proof, and the admissions of defendants Nahn, it was entitled to judgment on the express contract as a matter of law. The Nahns erroneously assert that Papin cannot recover under the contract for failure to allege and prove full performance. It appears the trial court judgment on Papin's claim under an alleged express construction contract was granted upon this basis. We conclude that the trial court misapplied the law of construction contracts, and we reverse and remand the judgment denying Papin's claim.

As a general rule, plaintiff must plead to state a cause of action for breach of contract: (1) an agreement between parties capable of contracting; (2) mutual obligations arising thereunder with respect to a definite subject matter; (3) a valid consideration; (4) part performance by one party and prevention of further performance by the other; (5) damages measured by the contract and resulting from its breach. State ex rel. Fletcher v. Blair, 352 Mo. 476, 178 S.W.2d 322, 324 (1944). An exception to the rule...