Carroll Contracting Co. v. Newsome
| Decision Date | 06 November 1918 |
| Docket Number | No. 15175.,15175. |
| Citation | 201 Mo. App. 117,210 S.W. 114 |
| Parties | CARROLL CONTRACTING CO. v. NEWSOME et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Glendy B. Arnold, Judge.
Action by the Carroll Contracting Company against W. D. Newsome and the Merchants' & Consumers' Market House Association. From the judgment, defendant Association appeals. Judgment against defendant Newsome affirmed, judgment against the Association reversed, and cause remanded as to It.
Robt. W. Hall and Charles A. Houts, both of St. Louis, for appellant.
J. D. Johnson, of St. Louis, amicus curios. Connett & Currie, of St. Louis, for respondent.
Plaintiff, respondent here, brought his action against one Newsome for certain excavation work done in the cellar or basement of a building proposed to be erected in the city of St. Louis, and to establish a mechanic's lien against the owner of the land, Merchants' & Consumers' Market House Association, the latter hereafter referred to as the Market House Association. His petition is in two counts. The first is on quantum meruit, the second on contract. The amount claimed under each is $4,672.42.
At a trial before the court, a jury having been waived, the court found for plaintiff against the defendant Newsome on the second count of the petition in the sum of $4,667.42, principal and interest, the latter from October 14th, 1914, to June 14th, 1915, and adjudged it to be a lien against the property of the defendant Market House Association, finding for the defendant on the first count of plaintiff's petition.
Filing a motion for new trial and excepting to the action of the court in overruling it, the Market House Association has duly appealed. Defendant Newsome did not appeal.
The second count sets out that plaintiff and the defendant Newsome entered into a contract to the effect that the plaintiff should and would provide all the materials and perform all the work in the excavation for the building known as the Merchants' & Consumers' Market House Association Building, and that the plaintiff should receive from defendant Newsome, for such work and labor the sum of $6,328, said work to be done in accordance with the drawings and specifications prepared for said building by C. B. Yoder & Company, architects; that thereafter, and about September 15th, plaintiff, in performing the contract, commenced the work of excavating for the building, in accordance with the drawings and specifications, on the lot described, upon which the proposed market house building was to be erected and constructed, and that continuously from and after September 15th, up to and including October 7th, 1914, plaintiff did and performed the work and labor in and about the excavation for the building and duly performed all the conditions of the contract on his part to be performed, up to and including October 7th, 1914; that plaintiff had excavated and removed from the excavation for the market house building 13,514 cubic yards of earth, the work having been done down to and including October 7th, 1914, being and amounting to 89 9/10 per cent. of the entire amount of work required to be done under and in accordance with the terms of the contract between plaintiff and defendant. Then follows the itemized account. This consists of items, commencing with the date September 15th, 1914, and including that date ends with and includes October 7th of the same year, showing the number of hours of labor thus:
Foremen ........................... 20 hours
Laborers .......................... 60 "
Steam shovel ...................... 10 "
Wagons ............................ 70 "
Teams ............................. 70 "
Superintendent .................... 10 "
No amount is given as showing the charges per hour.
In addition, under date of October 7th, is the item, "6,750 feet of lumber for runway, supplies for pipe line, hose, pipe and fittings," and closes with this entry:
Total price for excavation done ......... $5,688.87
By cash paid on account by W. D. Newsome
September 30th, 1914 .................. 1,200.00
_________
Balance due ......................... $4,488.37
Following this it is set out that it was understood between Newsome and plaintiff that plaintiff was to receive payment from Newsome every two weeks for the work it had completed, less 15 per cent. of the amount due according to the estimate of the architects in charge of the building and work. Averring that Newsome had paid $1,200 of this on account and no more, it is averred that the balance due, according to the terms of the contract, amounted to $4,488.87, which Newsome had refused and neglected to pay, and that on October 7th, 1914, Newsome abandoned his contract and refused to perform any of the conditions thereby imposed upon him, although plaintiff was ready, willing and able to complete the excavation required for the erection of the proposed market house. Averring that the sum charged is the reasonable price and value of the work, it is averred that the balance is still due. It is further averred that this work and labor was done and performed in and about the excavation for the basement of the market house building proposed to be erected on the land described, and that at that time and when the work was done, this land was the property of the Market House Association; that Newsome was the original contractor with defendant Market House Association for the excavation required in the erection of the market house proposed to be erected upon the described lot; that the demand became due on October 7th, 1914. Following are averments showing filing of lien, due notice, etc., and judgment is demanded for $4,488.87, with interest at the rate of 6 per cent. per annum from October 7th, 1914, and costs, and that it be declared a lien against the property described.
Newsome filed an answer, denying each and every allegation contained in the petition, and all knowledge or information sufficient to form a belief thereof and prays judgment. A motion to strike this out was filed and overruled.
The defendant Market House Association filed a demurrer to the petition, which was overruled and exceptions saved. It then filed an answer, denying all the allegations of the petition. Subsequently it filed a motion to elect between the two counts, averring that the first was on a quantum meruit and the second upon a contract. This was overruled, defendant excepting.
The deposition of defendant Newsome was taken in the case and filed and read by plaintiff at the hearing.
The articles of association of the Market House Association were in evidence, by which it appeared that it was formed for the purpose of erecting a market house, the corporation incorporated with a named capital of $125,000, divided into 1,250 shares, of which Victor Diesing owned 646 shares, his wife, brother-in-law and other parties owning a share each, Victor Diesing and these parties being named as the first board of directors, Diesing being president.
Plaintiff, to sustain the issues on his part, introduced an agreement, of date September 14th, 1914, between itself, a corporation, as party of the first part, and W. D. Newsome, party of the second part, for doing the excavating for the price and sum of $6,328. Plaintiff then introduced in evidence WI agreement of date September 12th, 1914, between Victor Diesing and the Merchants' & Consumers' Market House Association, parties of the first part, and W. D. Newsome, as party of the second part, which reads:
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