Board of Regents for Southeast Missouri State College v. Minner Const. Co., 33254

• Decision Date: 16 September 1969
• Docket Number: No. 33254,33254
• Citation: 446 S.W.2d 841
• Parties: The BOARD OF REGENTS FOR the SOUTHEAST MISSOURI STATE COLLEGE at the Relation and to the Use of Ralph H. Friedrich, d/b/a Friedrich Sheet Metal, Plaintiff-Respondent, v. MINNER CONSTRUCTION COMPANY, Inc., a Corporation, Condaire, Inc., a Corporation, and the Travelers Indemnity Company, a Corporation, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 841

446 S.W.2d 841

The BOARD OF REGENTS FOR the SOUTHEAST MISSOURI STATE COLLEGE at the Relation and to the Use of Ralph H Friedrich, d/b/a Friedrich Sheet Metal Plaintiff-Respondent, v. MINNER CONSTRUCTION COMPANY, Inc., a Corporation, Condaire Inc., a Corporation, and the Travelers Indemnity Company, a Corporation, Defendants-Appellants.

No. 33254.

St. Louis Court of Appeals, Missouri.

Sept. 16, 1969.

Motion for Rehearing or to Transfer to Supreme Court Denied

Oct. 14, 1969.

Application to Transfer Denied Dec. 8, 1969.

Spradling, Bradshaw & Drusch, Cape Girardeau, Biggs, Hensley, Curtis & Biggs, St. Louis, Ward Fickie, Clayton, for defendants-appellants.

Vogel & Frye, Cape Girardeau, for plaintiff-respondent.

WOLFE, Presiding Judge.

This action on behalf of Ralph H. Friedrich is on a contract with defendant Condire, Inc. Friedrich claims that there was dur him $15,082.03 under the contract. He also asserts a claim for $329.20 against Minner Construction Company for some repair work done. All of the work and material furnished, on both of the claims asserted, was on the Language Arts Building of the Southeast Missouri State College in Cape Girardeau. This building was constructed under a contract between the Board of Regents of the college and the Minner Construction Company. The Minner Company contracted with Condaire, Inc., to install the heating and air conditioning. Condaire contracted with Friedrich who was in the sheet metal business to do certain work in connection with the installation. The defendant Travelers Indemnity Company, as surety, executed a performance and payment bond in the penal sum of $1,103,600.00 payable to the plaintiff Board of Regents. The trial was to the court and resulted in a judgment against Condaire, Inc., in the sum of $15,030.09 and an order of execution against all defendants for that amount. It also entered judgment against Minner Construction Company for $329.20 and ordered execution against The Travelers Indemnity Company. The defendants appeal.

The total compensation agreed upon by Condaire for the work and materials supplied by Friedrich was $50,395.00. Friedrich had been paid $35,312.97 as the work progressed. He claims in this action that there was a balance of $15,082.03 due him on the contract with Condaire and $395.20 due him from Minner for repair work. Condaire had disputed the balance claimed by Friedrich as it had back-charged $7,168.10 against him for certain work that it was obliged to do and which it claimed that Friedrich should have done under his contract. It sent him a check for $7,862.09 which was the difference between the amount claimed by Friedrich and the amount back-charged against him. Friedrich returned the check. Condaire counterclaimed for the amount it had back-charged and there was a judgment against it on the counterclaim. After the judgment against it for $15,030.09, Condaire satisfied that portion of the judgment which was not in dispute and paid into court $7,861.99. This left in controversy only the sum of $7,168.10, the amount of the back-charge, and $395.20 on the judgment against Minner; so there is no question about appellate jurisdiction being in this court, which is limited to $15,000.

This is, in effect, two suits and the first to be considered is Friedrich's claim against Condaire for $7,168.10. This is the amount back-charged by Condaire against Friedrich for the installation by it of finned pipe radiation covers for the baseboard radiation. The defendants contend that under the contract signed by Friedrich this work should have been done by him and that the contract so specifies. The contract offered in evidence by the defendant Condaire provides:

'For the consideration hereinafter named, the Sub-contractor covenanst and agrees with said Contractor, as follows:

'FIRST. The Sub-contractor agrees to furnish all material and perform all work necessary to complete the Language Arts Bldg. SEMO State College, Cape Girardeau, Mo. according to the plans and specifications of Buckmueller Whitworth & Assoc., Architects. Specifically Section 15A Paragraph 1--2--9--10--11--12--13--14--21--22--23--24--27--29--28 and including the furnishing of registers, grilles, diffusers, louvers, under floor transite thermaflex tubing for the above named structure, according to the plans and specifications (details thereof to be furnished as needed) of _ _ Architect, and to the full satisfaction of said Architect.

'The Contractor and the Sub-contractor for themselves, their successors, executors, administrators and assigns, hereby agree to the full performance of the covenants of this agreement.'

The contract is signed by both Condaire, Inc. and Ralph H. Friedrich.

The controversy centers on Paragraph 21(b) of Section 15A of the specifications which states:

'Finned pipe radiation shall be wall to wall installation. The cover shall be approximately 10 high sloping top with integral stamped outlet grille of the inclined blade type, rounded corners and shall be provided with 3 long heavy cover pieces installed at each partition to provide for dimensional variation. Joints between covers shall be butt joints. The covers shall be made of 14 gauge furniture steel prime coated at the factory. The covers shall be supported from heavy support brackets spaced on 3 centers and arranged to secure the bottom edge of the cover as well as the top and inclined front. The bracket shall be secured to the masonry walls with expansion bolts set in the masonry. Covers shall be neatly aligned to provide a continuous and unbroken appearance in each room. * * *.'

There is no contention that Condaire did not do the work for which it back-charged Friedrich. Friedrich maintained that he only contracted to do sheet metal work and that Paragraph 21(b) was not within that category. Over the objection of the defendant, the trial judge admitted evidence that the work required to be...