Boyer v. Eberts

• Decision Date: 04 June 1951
• Docket Number: No. 21533,21533
• Parties: BOYER et al. v. EBERTS.
• Court: Missouri Court of Appeals

Page 44

241 S.W.2d 44

BOYER et al. v. EBERTS.

No. 21533.

Kansas City Court of Appeals, Missouri.

June 4, 1951.

Wallace Cooper, Garrett R. Crouch, Warrensburg, for appellant.

Gayles R. Pine, Warrensburg, for respondents.

BROADDUS, Presiding Judge.

This suit was instituted in the Magistrate Court of Johnson County, Missouri, by plaintiffs, John Boyer, James W. Gillam and John Boyer, Jr., against defendant, J. Rolga Eberts.

In Count I of the petition, plaintiff, John Boyer, alleged that he, in company with the other two plaintiffs, was employed by defendant to render services to defendant, at his special instance and request, in pouring concrete, removing scaffolding and laying tile, at the agreed price of $1.50 per hour and to use this plaintiff's concrete mixer in such work, at the agreed price of $.60 per hour, and that he worked under such agreement for a total of 21 1/2 hours and that he used his concrete mixer under such agreement for a total of six hours. Judgment for the sum of $35.85 was sought.

In Count II plaintiff, James W. Gillam, alleged that he, in company with the other two plaintiffs, was employed by defendant to render services to defendant at his special instance and request, in pouring concrete, removing scaffolding and laying tile, at the agreed price of $1.50 per hour, and that he worked under such agreement for a total of 16 hours; that the sum of $24 was due him.

In Count III plaintiff, John Boyer, Jr., alleged that he, in company with the other two plaintiffs, was employed by defendant to render services to defendant, at his special instance and request, in pouring concrete, removing scaffolding and laying tile, at the agreed price of $1.00 per hour, and that he worked under such agreement for a total of 10 1/2 hours, and praying judgment against defendant for the sum of $10.50.

A trial was had in the Magistrate Court and judgment was found in favor of defendant. Plaintiffs appealed to the Circuit Court. At a trial in the latter court before a jury plaintiffs recovered verdicts in the amounts sought. Defendant appeals to this court.

The pertinent facts as developed by the plaintiffs' evidence are: In the fall of 1947 defendant talked with plaintiff John Boyer about putting a new roof on defendant's farm home, located south of Warrensburg, Missouri, but because of bad weather, only temporary repairs could be made; that plaintiff John Boyer was to use plaintiff Gillam and plaintiff John Boyer, Jr., in making these repairs and that defendant was to pay at the rate of $1.25 per hour. Plaintiffs John Boyer and Gillam did all the work in making these repairs and defendant paid plaintiff John Boyer the sum of $10 as full payment therefor.

In the fall of 1948, defendant and plaintiff John Boyer met on the street in Warrensburg, and defendant said: 'I want my roof put on now, the weather conditions are right. Bring Mr. James Gillam and John Boyer, Jr., and let's get it on.' At this meeting nothing was said about wages. The work consisted of putting on a new roof, ridge poling with tin, putting in porch joists, rafters, decking roofing, putting on 285 feet of guttering and 40 feet of downspout, building two flues, repairing roof on tenant house, painting cornices, guttering, downspout and flues, laying 370 feet of tile and cutting downspout into sewer line. The work began September 27, 1948, and continued until October 30, 1948. On October 30th, 1948, plaintiff John Boyer tendered a bill to defendant for $711.67, said bill showing that plaintiffs John Boyer and James Gillam were charging $1.50 per hour and plaintiff John Boyer, Jr., $1.00 per hour. Defendant paid the bill by check dated October 30, 1948, the payee being John Boyer. The bill included a small amount for material, about $700 was for labor. At the time of giving the check defendant told John Boyer that he wanted other work done.

The facts further show that on October 30, November 7 and 27, 1948, plaintiff John Boyer worked 21 1/2 hours for defendant; that on October 30, 1948, he used his concrete mixer for 6 hours; that plaintiff Gillam worked 16 hours on October 30 and November 6, 1948, for defendant, and that plaintiff John Boyer, Jr., worked 10 1/2 hours on October 30, 1948 for defendant; that plaintiff John Boyer paid plaintiffs Gillam and John Boyer, Jr., for work done prior to October 30, 1948; that the only conversation between defendant and plaintiff John Boyer as to what plaintiff John Boyer was to charge was in 1947, and plaintiff John Boyer said $1.25 per hour. That the charge at the particular time in 1948 for putting on shingles was between $3 and $5 per square and that the charge for putting on shingles normally includes the scaffolding; that plaintiffs put on about 36 squares of shingles.

Plaintiff John Boyer, Jr., testified that there was no direct statement made about defendant hiring him; that he never talked with defendant about going to work and never discussed wages with defendant.

Plaintiff Gillam testified that he knew nothing of the arrangements for working; that plaintiff John Boyer and defendant made all arrangements. Plaintiff Gillam was asked:

'Q. Wasn't the only reason you were out there because Mr. Boyer asked you to go out? A. Mr. Boyer told me he had a job; if I wanted to help him, O.K.

'Q. You never talked to Mr. Eberts (defendant) about $1.25 an hour or $1.50 an hour? A. I did not.'

The relevant facts shown by defendant's evidence are: That defendant's discussions were with plaintiff John Boyer, and that there was no discussion of a wage rate at any figure; that plaintiff John Boyer said he would do the work as reasonably as any other carpenter; that defendant never had any agreement with either James Gillam or John Boyer, Jr., and that defendant would leave it to plaintiff John Boyer to get the help; that...