Burger v. Wood
| Decision Date | 09 October 1969 |
| Docket Number | 8872,Nos. 8869,s. 8869 |
| Citation | 446 S.W.2d 436 |
| Parties | A. C. BURGER d/b/a Midwest Contractors-Builders, Plaintiff-Appellant, v. Glenn E. WOOD and Lawrence P. Piper, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Morgan M. Moulder, Camdenton, for plaintiff-appellant.
Neale, Newman, Bradshaw & Freeman, O. J. Taylor, Springfield, for defendants-appellants.
This action was brought by plaintiff, A. C. Burger d/b/a Midwest Contractors-Builders, on an express oral contract with defendants, Glenn E. Wood and Lawrence P. Piper, pursuant to which plaintiff laid a hot mix asphaltic cement (asphalt) driveway from Route HH in Camden County, Missouri, to serve defendants' homes in Crestwood Acres, Horseshoe Bend Addition, a timbered tract bordering on that highway. By an affirmative plea of recoupment 1 in their answer, defendants charged plaintiff with defective workmanship and alleged that plaintiff was not entitled to a judgment 'in excess of $4,000.' Following trial to the court and submission of after-trial memoranda by counsel, judgment for plaintiff in the sum of $6,468.38 was entered against both defendants. All parties appeal.
The main driveway followed the path of a pre-existent drive sharply upgrade from Route HH over an irregularly sweeping curve (roughly resembling an inverted 'U') to the hilltop home of defendant Wood. About midway along the route of the main driveway, a much shorter driveway branched from the main driveway (on the outside of its inverted 'U' course) to serve the hillside home of defendant Piper. When the original oral contract was entered into, it was contemplated that the Piper driveway would terminate in a turnaround in front of the Piper home, with a narrow, elongated, unpaved island within the paved turnaround. Before work under the contract had been completed, the parties orally agreed that plaintiff would extend the Piper driveway to complete it as an irregularly semicircular way connecting with the main driveway at two points, instead of one as originally planned.
There has been and is no dispute concerning either the existence of the express oral contract or its terms and provisions, those here important, as stated in the trial court's findings of fact, being that 'plaintiff was to furnish all equipment, labor and materials for the preparation of the necessary roadbed, placing and compacting of a three-inch crushed rock base on said roadway and placing of a two-inch asphalt surfaced driveway' and that the contract price to be paid by defendants to plaintiff for said work was to be $6,000 plus 3% sales tax of $180. Extension of the Piper driveway was treated as extra work under the express oral contract, to be completed in accordance with the same specifications and to be done on a time and materials basis for not more than $1,250. Upon completion, plaintiff billed $1,153.58 for this extra work. Admittedly, defendants are jointly liable for whatever sum may be found payable to plaintiff in this action.
Measuring along the center of the driveways, plaintiff's witness Krehbiel, a deputy county surveyor and the only witness in this testimonial field, determined that the total length of both driveways was 1,369 lineal feet, of which 1,028 lineal feet were in the main driveway (as shown on his drawing in evidence) and 345 lineal feet were in the Piper driveway. The same witness found the entire paved area of both driveways to have been 2,724 square yards, of which approximately 2,140.7 square yards were in the main driveway and approximately 583.3 square yards (i.e., an area of 5,250 square feet, as stated positively by the witness, and thus 583.3 square yards, not 683.3 square yards, the erroneous quotient spawned by hasty division on the stand) were in the Piper driveway. Krehbiel's testimony also indicated that, of the 5,250 square feet or 583.3 square yards in the Piper driveway, approximately 3,181 square feet or 353.4 square yards were in that portion of the Piper driveway originally contemplated by the oral contract (hereinafter referred to as the original Piper driveway) while 2,069 square feet or 229.9 square yards were in the extension of the Piper driveway done as extra work (hereinafter referred to as the Piper driveway extension).
The significant findings of the trial court, of which plaintiff here complains, were (1) that plaintiff's work on the original Piper driveway 'was defective in the following respects: plaintiff did not apply a full three-inch rock base, properly compacted, on all of drive . . . (and) did not apply a full two inches of asphalt pavement on all of said drive as agreed upon by the parties,' and (2) 'that the value of the work performed by plaintiff for defendants, taking into account the defective work on said Piper drive, and allowance for sales tax amounted to the sum of $6,468.38.' On these findings of fact, the trial court reduced plaintiff's principal demand of $7,333.58 (i.e., the sum of the original contract price of $6,000, the sales tax of $180, and $1,153.58 for the extra work) by $865.20, entered judgment for $6,468.38, and denied prejudgment interest. Asserting that he 'fully performed his part of the contract in a workmanlike manner' and that defendants 'failed in their burden of proving the affirmative defense of bad workmanship,' plaintiff here insists that he was and is entitled to judgment for $7,333.58, with interest thereon at 6% per annum from October 16, 1965, the date of his initial demand for payment. On the other hand, defendants maintain that plaintiff's demand of $7,333.58 should have been reduced by $1,550 to $5,783.58 and that prejudgment interest properly was denied, and their supplication here is that we remand 'with instructions to enter judgment in the amount of $5,783.58.'
Much testimony and many exhibits were received upon trial; but, to confine this opinion within reasonable bounds, we will limit ourselves to recording those facts and considering those issues essential to proper determination of the respective appeals. Bloomfield Reorganized School Dist. No. R--14, Stoddard County v. Stites, Mo., 336 S.W.2d 95, 97; Southwest Engineering Co. v. Reorganized School Dist. No. R--9, Lawrence County, Mo.App., 434 S.W.2d 743, 746. The work originally contemplated by the express oral contract was done during the late Summer or early Fall of 1965. Before that work had been completed and during 'the latter part of September or early October' (so plaintiff thought), the parties agreed upon the extra work to be done on the Piper driveway extension. After the main driveway had been paved, defendant Wood complained that 'a too large aggregate' had been used in the asphalt and that rocks 'up to an inch (in) size' were 'showing up on the surface of the driveway.' Although insisting that the aggregate used in the asphalt was not too large (it was 'state specs 5/8 minus'--'that means you crush the rock into the crushers on screens and nothing larger than 5/8 (inch) can go through'), plaintiff agreed to satisfy Wood's complaint by adding 'a sand finish' or (as it was more frequently referred to) a 'cap coat' on the main driveway. No 'cap coat' was applied on the Piper driveway.
Defendant Piper's hillside home was on the lower side of the elongated turnaround, and the bifurcated segment of the original Piper driveway between the Piper home and the lower side of the narrow, elongated, unpaved island within the paved turnaround (that segment being identified as the lower level) was lower than the bifurcated segment of the original Piper driveway on the opposite and upper side of the unpaved island (that segment being identified as the upper level). About ten days after the paving was finished, an area on the lower level began to 'fracture.' At defendant Piper's request, plaintiff 'came over and looked at it,' said that 'he couldn't understand why it had given way like that,' and 'after a lengthy discussion' agreed to patch it, which he did. The dimensions of that area waere given by plaintiff as 4 to 5 feet in length and 3 feet in width and by defendant Piper as 12 feet in length and 4 feet in width. Whatever its precise size may have been, defendant Piper made photographs (received in evidence) of this area after the fractured asphalt surface had been cut out, observed the base himself, and talked with plaintiff's employees doing the work. Without objection or motion to strike, Piper testified:
Within 1 1/2 to 2 months after plaintiff's patchwork, other areas in the original Piper driveway 'began to crack and suddenly deteriorate.' The testimony of defendant Piper, the only witness who undertook to particularize concerning these areas, was in some respects confused and confusing, and we have been unable to reconcile and correlate all of his testimony with the several photographic exhibits taken on June 24, 1966, and on October 10, 1967, to which he and counsel frequently (and sometimes mistakenly) alluded. As best we can unravel the entangled record, three other fractured areas developed, to wit, (1) an area 18 feet by 6 feet adjoining or near that patched by plaintiff on the lower level of the turnaround, (2) an area 6 feet 8 inches by 4 feet 5 inches on the upper level of the turnaround, and (3) another area of undisclosed dimensions on the upper level. It is plain from defendant Piper's testimony that the area 18 feet by 6 feet on the lower level was patched by one Gamble (not called as a witness) during ...
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