Bradley Heating Co. v. Thomas M. Sayman Realty & I. Co.

• Decision Date: 04 March 1918
• Docket Number: No. 19053.,19053.
• Citation: 201 S.W. 864
• Parties: BRADLEY HEATING CO. v. THOMAS M. SAYMAN REALTY & INVESTMENT CO.
• Court: Missouri Supreme Court

201 S.W. 864

BRADLEY HEATING CO. v. THOMAS M. SAYMAN REALTY & INVESTMENT CO.

No. 19053.

Supreme Court of Missouri. Division No. 1.

March 4, 1918.

Appeal from St. Louis Circuit Court; Karl Kimmel, Judge.

Action by the Bradley Heating Company against the Thomas M. Sayman Realty & Investment Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Charles E. Morrow, of St. Louis, for appellant. Marshall & Henderson, of St. Louis, for respondent.

GRAVES, J.

Action in quantum meruit, for a balance of $1,757 and interest. Plaintiff avers that it had a contract with defendant to put in a heating plant In a certain building in the city of St. Louis belonging to defendant at the agreed price of $10,732, payments to be made as the work progressed as follows: 85 per cent. in monthly payments of labor and material inwrought into the building and 10 per cent. at completion, and the balance or final payment within 30 days after the completion of the work included in the contract; all payments to be due when certificate for same was issued. Plaintiff then avers that it in good faith undertook the performance of its said contract, but that defendant breached the same by refusing to pay the plaintiff the sums accruing under their contract at the time therein specified and by refusing to allow the plaintiff to proceed further in the performance of its contract. The plaintiff then further averred that it had furnished defendant material and labor in the sum of $9,942 and had been paid thereon the sum of $8,175, and asked judgment for the balance of $1,757 and interest. To the petition an itemized account of materials and labor furnished and the several payments made was attached and made a part thereof.

By answer the defendant (1) admits the execution of the contract, admits the payment of $8,175, but denies that defendant breached the contract and denies that plaintiff in good faith performed its part of the contract, (2) denies that the material and labor was of the reasonable value of $9,932, but avers the value of material and labor to be $4,000, (3) that plaintiff had breached the contract by failing to complete the same, and failing to furnish materials according to the specifications of the contract, (4) that the amount paid was in excess of the reasonable value of the materials and labor furnished, and for that reason the defendant owed plaintiff nothing. In the answer was also pleaded a counterclaim for damages occasioned by the alleged breach of the contract by plaintiff. Defendant asked for a total of $10,175 in damages, and it is this that gives us the jurisdiction.

The reply met and placed in issue the divers allegations of the answer. Upon a trial before a jury the plaintiff had a verdict for $1,777.35 on its claim, and a verdict in its favor on defendant's counterclaim, and afterward a judgment in accordance with such verdict. From this judgment defendant appeals.

I. Whether a plaintiff contractor, whose contract has been breached by the owner of the building (the other party to the contract) and who has elected to sue in quantum meruit (as has the contractor in this case), can in such quantum meruit action have a recovery in excess of the contract price, is not involved in this case. Such question, i. e., whether a contractor whose contract has been breached by the owner of the building, and who has elected to sue in quantum meruit, rather than upon the contract, must in such action have the value of his materials and labor furnished, measured by the contract price, rather than by the actual reasonable value of the same, is one upon which may be found much learning. In this case the plaintiff has seen fit, by its own instructions, to limit its recovery to the contract price, and is, of course, bound by the theory adopted nisi.

Nor does the defendant by his refused instruction force a decision upon this very interesting question. Plaintiff's instructions proceed upon the theory that plaintiff is entitled to recover the reasonable value of the materials and labor furnished, not however to exceed the contract price. Defendant's refused instruction was on the theory that plaintiff had breached the contract and that defendant's damages should be assessed "at the difference between the reasonable value to the defendant of the work and materials so furnished and installed which do not comply with the terms of said contract and the amount it will reasonably cost the defendant to install materials which will comply with the terms of said contract."

Plaintiff's instruction authorized the recovery of the reasonable value of materials and labor furnished up to the contract price. Defendant's refused instructions limited the reasonable "value to "the reasonable value to defendant." Complaint is made as to the instruction of plaintiff on the measure of his recovery, but it is on the theory that the reasonable value to be recovered should be "the reasonable value to the defendant." That question we take next.

II. There are two classes of quantum meruit actions growing out of violated builders' contracts: (1) Where the contractor breaches the contract and the owner has taken over and used the material and labor furnished; and (2) where the owner has breached the contract, or prevented its full performance, and the contractor has elected to sue in quantum meruit rather than upon his contract. To my mind some loose writing has been done, and been done without considering a possible distinction which might be drawn as to the measure of recovery in the two classes of cases. From an early date in this state it has been held that, if the owner actually appropriated and used the materials and labor furnished by a contractor who had defaulted upon his contract, the contractor was not wholly barred from a recovery, but had his action in quantum meruit. Yeats v. Ballentine, 56 Mo. 530, and the earlier cases therein discussed. In such an action, by a defaulting contractor, he was permitted to recover; but his recovery could be reduced, under proper pleadings and proof, by the amount of damages his breach of the contract might have occasioned to the owner. Nor would he, in this kind of a case, be permitted a recovery in excess of the contract price. Plaintiff's instruction No. 1 proceeds upon the theory that defendant had, breached the contract by refusing to permit plaintiff to proceed with the work. Defendant's refused instruction B proceeds upon the theory that plaintiff had breached the contract. We take first the objection to plaintiff's instructions. The petition alleges a breach of the contract by defendant, so that the case in hand, so far as plaintiff is concerned, falls within the second class of quantum meruit actions, supra. This was the plaintiff's theory of the case, and the question is whether or not, on that theory, the instruction is wrong on the measure of damages. It should be admitted that in cases of the first class, supra, there are some loose expressions to the effect that the measure of the recovery is the reasonable value of the materials and labor to the owner, who has been left in possession of such, by the default of the contractor. Thus in Yeats v. Ballentine, 56 Mo. loc. cit. 538, it is said:

"But this idea of acceptance, as a waiver, is not the ground upon which courts have allowed a recovery on a quantum meruit count. It is because the work is of value to the proprietor, and, if it is of no value, there can be no recovery.

"There was evidence in this case that the work done by plaintiffs was of no value to defendant, and was, in fact, an injury to his house; but there was evidence, also, that the work was fully worth the prices charged in the petition and account, which exceeded the contract prices. We must take it, under the verdict, that the work was worth the contract price to the defendant."

So, too, in Marsh v. Richards, 29 Mo. loc. cit. 105, it is said:

"Although it is generally true that a party must perform his contract before he can be entitled to the compensation due on its performance, unless it is otherwise stipulated, yet there are cases in which the services rendered by the contractor are valuable to him for whom they were performed, and he has expressly or tacitly accepted them. In such cases, although the work has not been done within the stipulated time nor in the manner or with the materials required by the terms of the contract, he who performed the work may recover what it is reasonably worth to the owner, not exceeding the contract price."

The italics in the above quotations are ours.

In other cases coming within the same class, the rule stated does not contain the restriction "reasonable value to the defendant" or other equivalent language.

But all this is immaterial here, because we are now discussing defendant's objections to plaintiff's instructions. Plaintiff's petition and instruction was bottomed upon the theory that defendant had breached the contract. To say in such case that the value of plaintiff's material and work must be measured by the reasonable value to the defendant (if there is a substantial difference between "reasonable value of materials and labor furnished" and "reasonable value of the materials and labor to the defendant") would be to give to defendant the benefits of his own wrongful conduct. So that we have no hesitancy in saying that in a quantum meruit action brought by a contractor, where there has been a breach of the contract by the owner, the contractor is entitled to have an instruction which would at least entitle him to recover the reasonable value of the materials and labor furnished, at least up to the contract price. We say at least up to the contract price, because this is as far as the plaintiff's instruction goes in this case, and it is not necessary to discuss what is the real measure of his recovery.

Thus in McCullough v. Baker et al., 47 Mo. loc. cit. 402, 403, it is said:

"The suit is not...