Bowman v. C. O. Jones Bldg. Co.

• Decision Date: 16 March 1933
• Docket Number: 32303
• Citation: 58 S.W.2d 718,332 Mo. 520
• Parties: Lynn E. Bowman, doing business as Bowman Plumbing & Heating Company, v. C. O. Jones Building Company, a Corporation, Appellant
• Court: Missouri Supreme Court

58 S.W.2d 718

332 Mo. 520

Lynn E. Bowman, doing business as Bowman Plumbing & Heating Company, v. C. O. Jones Building Company, a Corporation, Appellant

No. 32303

Supreme Court of Missouri

March 16, 1933

Appeal from Jackson Circuit Court; Hon. Ralph S. Latshaw Judge.

Affirmed (on condition).

Gossett Ellis, Dietrich & Tyler for appellants.

(1) All the plans, specifications, the letter of proposal and acceptance, and that part of the city ordinances referred to constitute the contract between the parties, and the fact that all of these documents had to be consulted before the full obligation of the plaintiff could be ascertained, in no manner or degree prevents such requirements from being part of the contract, whether the plaintiff had possession of all of them or not, since in any case the documents containing the various requirements are clearly indicated in that part of the contract which the plaintiff admits he possessed. 13 C. J. 528; 13 C. J. 530; 9 C. J. 709; McDonald v Wolf, 40 Mo.App. 302; Houck v. Frisby, 66 Mo.App. 16; Benz v. Hyatt, 200 Mo. 299; Johnson v. Wood, 84 Mo. 489; Missouri Pacific v. Levy, 17 Mo.App. 501; McGregor v. Ware Construction Co., 188 Mo. 611; Evans v. Graden, 125 Mo. 72; Burke v. City of Kansas, 34 Mo.App. 570; Taylor v. Fox, 16 Mo.App. 527; Kennedy v. Bowling, 319 Mo. 401; Snoqualmi Realty Co. v. Moynihan, 179 Mo. 629; Ruecking v. McMahon, 81 Mo.App. 422; Kleeman v. New Amsterdam, 177 Mo.App. 397; Burger Mfg. Co. v. Crites, 178 Mo.App. 218; Swabey v. Boyers, 274 Mo. 332; Webb-Kunze Const. Co. v. Gibsonite Co., 281 Mo. 629; Page on Contracts (2 Ed.) secs. 1321, 2044; Smith v. Flanders, 129 Mass. 322; White v. Breen, 106 Ala. 159; DuPont v. Schlottman, 218 F. 353; Leonard v. Woodruff, 25 Utah 494; Underwood v. Stack, 15 Wash. 497; Stevens v. Muskegon, 111 Mich. 72, 36 L. R. A. 777; Philadelphia v. Jewell, 135 Pa. St. 329, 19 A. 942 (incorporating ordinance requiring work to be done in two years); Howe v. Schmidt, 151 Cal. 436, 90 P. 1056; White v. McLaren, 151 Mass. 553; Guerini Stone Co. v. Carlin, 240 U.S. 264. (2) The court erred in not construing the contract itself, but leaving the construction to the jury, especially as to the slop sinks, by refusing defendant's peremptory instruction that plaintiffs were not entitled to recover for them. Evans v. Graden, 125 Mo. 72; Lokey v. Rudy-Patrick Seed Co., 285 S.W. 1028; Black Roofing Co. v. Warner, 93 Mo. 374; 38 Cyc. 1522; Wright v. Fonda, 44 Mo.App. 634; Cooper v. St. Louis, etc., Ry., 123 Mo.App. 141; Chapman v. K. C. C. & S. Ry., 114 Mo. 542; Early v. LeFaivre, 53 Mo. 470; Comfort v. Ballingall, 134 Mo. 281; Ford v. Dyer, 148 Mo. 528; Mount v. Neighbors Implement, 189 S.W. 614; Armstrong v. Chicago, etc., Ry., 62 Mo.App. 639; Page on Contracts (2 Ed.) sec. 2061; McDonough v. Williams, 77 Ark. 261, 8 L. R. A. 452; Biancki v. Terra Haute, 91 Vt. 177, 99 A. 875; Scanlan v. Hodges, 52 F. 354; New York, etc., v. Meyersdale, 236 F. 536; Commanche Mercantile v. Wheeler, 55 Okla. 328, 155 P. 583; James v. Carson, 94 Wis. 632, 69 N.W. 1004; Penn v. Crane, 134 Mass. 46; Titus v. Whiteside, 228 F. 965; McFadden v. Henderson, 128 Ala. 221, 29 So. 640; Illinois Cent. Ry. v. Foulks, 191 Ill. 57, 60 N.E. 890; Ault Woodenware v. Baker, 26 Ind.App. 374, 58 N.E. 265; Phoenix Pad Mfg. v. Roth, 127 Md. 540, 96 A. 762; Sherk v. Holmes, 125 Mich. 118; Douglas v. Paine, 141 Mich. 485; Bell Lumber Co. v. Seaman, 136 Minn. 106; Sattler v. Hallock, 160 N.Y. 271; 6 R. C. L. 863, par. 249; Freeman v. Hedrington, 204 Mass. 238, 90 N.E. 519. (3) There is no evidence to support the verdict and it cannot be sustained. (4) Respondent raised his point too late to be considered in this case. 3 C. J. 1432; Nall v. Wabash Ry., 97 Mo. 68; 3 C. J. 1449. (5) It is firmly established law that where a word is misspelled, or where by a mere clerical or typographical error the wrong word is used, no one being misled to his damage, that the mistake is not ground for objection or reversal or proceeding to correct the record. Commerce Trust Co. v. Ellis, 258 Mo. 702; Haggarty v. Ry. Co., 100 Mo.App. 424; Day v. Emery-Bird, Thayer, 114 Mo.App. 480; Shortel v. St. Joseph, 104 Mo. 114; Suttie v. Aloe, 39 Mo.App. 38; Lin v. Ry. Co., 10 Mo.App. 125; Eichorn v. M. K. & T. Ry., 130 Mo. 575; Johnson v. Mo. Pac. Ry. Co., 96 Mo. 340; State ex rel. v. Rodecker, 145 Mo. 450.

Julius C. Shapiro for respondent.

Atwood, J. All concur, except Hays, J., not voting, because not a member of the court at the time cause was submitted.

OPINION

ATWOOD

The above cause was transferred to this court by the Kansas City Court of Appeals because one of the judges therein sitting deemed the majority opinion (reported with dissenting opinion in 50 S.W.2d 203) contrary to certain decisions of the Supreme Court. The cause must now be determined as in case of jurisdiction obtained by ordinary appellate process. [Constitution of Missouri, Art. 6, Sec. 6 of Amendment adopted in 1884.]

The action is for recovery of an amount claimed to be due on account of alleged extras furnished under a plumbing and heating contract, and to establish a mechanic's lien therefor. Verdict and judgment went for plaintiff in the sum of $ 2371.99 as a lien claim and against defendants on their counter claim, from which judgment defendant C. O. Jones Building Company only has appealed.

The petition alleged existence of a contract between the parties by the terms of which plaintiff was to furnish all labor and material necessary for the complete installation of the plumbing and heating contemplated in the construction of two hotel and apartment buildings in Kansas City, Missouri, "in accordance with certain plans and specifications submitted to said plaintiff and being and forming a part of said contract;" that the sum agreed upon for the original work designated was $ 37,500, said work to be done according to and under one general contract with said defendant; "that said plans and specifications incorporated by reference in said contract and man part thereof, provided that said contracting parties, at any time during the course of the construction of said work might add to or require certain additional labor, and fixtures as by them might be deemed advisable;" that certain extras were ordered by defendant, including "slop sinks, drinking fountains, connecting gas stoves, installing ice water cocks, ice water lines, and other miscellaneous items," all of which were to be paid for at their reasonable value; that the total amount that became due and was owing to plaintiff was $ 40,341.88; that the sum of $ 37,940 had been paid, and that the balance of $ 2,401.88 was due plaintiff.

The answer admitted execution of the contract as alleged, stated that plaintiff had been paid in full for all work and material furnished by him, and denied other allegations of the petition. By way of further answer and counter claim it also alleged that plaintiff had breached his contract in several respects, particularly by failing to to furnish a 4-inch water pipe known as a "fire line" with proper connections and installing in lieu thereof a "dummy" line consisting of a 2-inch water pipe without connections; and by reason of the breaches pleaded defendant was damaged in the sum of $ 4,116. Plaintiff's reply was in the nature of a general denial.

The points for decision on this appeal involve plaintiff's right to recover for the installation of "slop sinks" shown to be of the reasonable value of $ 1,362.74, and defendant's right to recover on its counter claim for the item of plaintiff's failure to furnish the "fire line." Appellant contends that by the terms of the contract plaintiff was bound to furnish both of these items. Respondent construes the contract to the contrary, and further contends that even if defendant had a right to require plaintiff to furnish these items under the contract, such right was subsequently waived and that the slop sinks were ordered as extras.

The "fire line" which appellant says should have been installed was not expressly called for in any of the plans and specifications, but appellant relies on a provision in the plumbing specifications, which it is conceded plaintiff received prior to submitting his proposal, stating that "all work is to be done and tested in strict accordance with the Ordinances in force in this city," and on proof at the trial that the ordinances of Kansas City in force at the time these buildings were erected required the installation of such a fire line in the construction of buildings of that character. However, plaintiff testified that when he discussed this item with defendant's president, C. O. Jones, Mr. Jones stated that he did not really want a fire line as he had mechanical extinguishers, but he was afraid that the building inspector would insist on putting them in, although he did not know what the regulations were as to size, but that defendant "should run something up over there that I could get by the building inspector; that is all I care." Plaintiff then said: "Shall I run a two-inch galvanized pipe up there?" Jones replied: "Yes, we ought to run them up in the first building, and if it is not all right we will have to do what the building inspector says on the next one." There was evidence that plaintiff's installation was in accordance with this agreement, that defendant did in fact "get by" as the work was approved by the city inspector, and plaintiff testified that he received no complaint about the fire line prior to the filing of this suit. Defendant's counter claim as to this item was properly submitted and there was sufficient evidence to support the jury's verdict denying same.

Appellant's contention with respect to the item of "slop sinks" arises out of the trial court's...