Carter v. Zollinger

• Decision Date: 19 July 1935
• Docket Number: No. 23287.,23287.
• Citation: 85 S.W.2d 189
• Court: Missouri Court of Appeals
• Parties: FRANK CARTER, (PLAINTIFF) APPELLANT, v. H.R. ZOLLINGER, (DEFENDANT) RESPONDENT.

85 S.W.2d 189

FRANK CARTER, (PLAINTIFF) APPELLANT, v. H.R. ZOLLINGER, (DEFENDANT) RESPONDENT.

No. 23287.

St. Louis Court of Appeals. Missouri.

Opinion filed July 19, 1935.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Claude O. Pearcy, Judge.

REVERSED AND REMANDED.

Otto F. Karbe and Albert E. Hausman for appellant.

Opinion evidence as to temperature is not admissible when testimony as to exact degree of temperature, Fahrenheit, is available. Petersen v. C.M. & St. P.R.R., 19 So. Dakota 122, at page 126; Southern Iron Equipment Co. v. Smith, 257 Mo. 226.

Case, Voyles & Stemmler for respondent (appellant), H.R. Zollinger.

(1) The matter of hot or cold temperature is one of such common experience that a witnesses experiencing the temperature is competent to give his opinion and estimate thereon. It was, therefore, proper to permit the witnesses to testify that, at temperatures higher than ten degrees below zero the furnace failed to keep the house comfortably warm, as this testimony tended to prove a temperature less than seventy degrees and a resultant breach of the warranty. Leopold v. Van Kirk, 29 Wis. 548; Curtis v. C. & N.W. Ry. Co., 18 Wis. 312; 1 Greenleaf on Evidence (16 Ed.), pp. 549-550; Scanlon v. Kansas City, 325 Mo. 123 (l.c. 149), 28 S.W. (2d) 84, (l.c. 95). (2) If the testimony was objectionable, plaintiff had waived the right to object by having failed to object to similar testimony previously given, namely, that referring to the reconstruction of the flue. Sullivan v. Union Electric Light & Power Co., 331 Mo. 1065, l.c. 1082, 56 S.W. (2d) 97, l.c. 104.

McCULLEN, J.

This suit was begun before a justice of the peace in the City of St. Louis by Frank Carter, who will hereinafter be referred to as plaintiff, to recover from H.R. Zollinger, hereinafter called defendant, the sum of $305, balance due for installing a heating system in defendant's home under a contract. Defendant filed a counterclaim in which he alleged that the heating system would not heat the house in accordance with the warranty in the contract, and asked for $245 damages against plaintiff. On appeal to the Circuit Court of the City of St. Louis, a trial before the court and a jury resulted in a verdict and judgment in favor of defendant on plaintiff's cause of action, and in favor of defendant and against plaintiff in the sum of $1 on defendant's counterclaim. Plaintiff and defendant each filed a motion for a new trial. Both motions were overruled and each party has perfected his separate appeal to this court. On stipulation of the parties and by order of this court, the two appeals have been consolidated.

Plaintiff in his petition alleged that in August, 1924, he agreed to install a hot water heating apparatus in the premises of defendant, and that defendant agreed to pay $805 therefor; that plaintiff did install said hot water heating apparatus, and that defendant paid $500 on account thereof, leaving a balance due of $305, which defendant refused to pay although demand for payment was made. Plaintiff prayed judgment against defendant for said balance of $305, with interest from November 1, 1924.

Defendant's counterclaim alleged that plaintiff breached the agreement, and that said apparatus was not installed in a good, neat, substantial and workmanlike manner and was not adequate for the purpose; that it did not work, and defendant was required to spend $195 to make it work in the manner guaranteed by said agreement. Defendant further alleged that by reason of the defective and improper working of the furnace, the wall paper and furnishings of his home were damaged in the sum of $50. Defendant prayed damages against plaintiff in the total sum of $245.

The evidence shows that plaintiff was engaged as a contractor in the business of steam and hot water heating. Defendant's house was a one story frame building on a concrete base, with seven rooms and a basement, located on the old Florissant Road in St. Louis County. Defendant, desiring to have a hot water heating system installed in his home, went to the American Radiator Company sometime in July or August, 1924, and that company recommended plaintiff to do the work. By appointment, plaintiff went to defendant's home where he made an inspection. He went all through the house and measured each and every room to compute the cubical content thereof, examined the basement and talked the whole matter over with defendant to learn what defendant desired in the way of a heating system. Plaintiff testified that he understood that defendant wanted a heating system that would keep his home in comfortable condition even in cold weather; that he told defendant he would furnish him with the equipment and an installation to accomplish that purpose. Plaintiff made such measurements throughout the house as he deemed necessary to be the basis for a proposal by him to do the work.

On August 5, 1924, following the inspection, plaintiff submitted to defendant a written proposal "for furnishing and erecting complete an entire Low Temperature Hot Water Heating Apparatus" in the residence of defendant. The written proposal contained the following provision:

"Requirements. The result obtained shall be to heat the various rooms where radiators are placed to a temperature 70 degrees Fahrenheit when the outside temperature is 10 below zero."

Another clause of the written proposal provided that defendant, as the owner, would "provide for the exclusive use of this apparatus a good and sufficient smoke flue extending from bottom of cellar to point sufficiently elevated above roof to be unaffected by adverse winds." The written proposal also provided that defendant should do "any work that shall be necessary to put doors, windows or other parts of the building in thorough repair so as to avoid undue waste of heat." The last paragraph of the written proposal provided:

"Finally. The entire apparatus will be put up by expert mechanics, in a good, neat, substantial and workmanlike manner, first class, in every respect, and in the best, most approved form known to the trade, and when finished will be put in operation, thoroughly tested and left ready for use, and is hereby fully guaranteed of ample capacity to warm each room in which radiator is located to 70 degrees when outside temperature is 10 degrees below zero, for the sum of Eight Hundred and Five Dollars ($805.00)."

The evidence further shows that after receiving plaintiff's written proposal, defendant verbally ordered plaintiff to go ahead with the work; that the heating system was installed by plaintiff and at the completion thereof defendant sent plaintiff a check for $500, but later refused to pay the balance because, as he claimed, the system did not adequately heat the house.

Plaintiff testified that when he got through installing the system "it worked fairly well. We didn't stay there any length of time, may be three or four hours, until we painted it and tested it out. It worked as well as any other system would. It worked all right. On the day we finished the job it worked all right." Plaintiff further testified that he had made approximately two thousand installations such as he made in defendant's home and that they were made exactly the same.

The deposition of D.M. Forgan of Rye, N.Y., Vice-President of the American Radiator Company, who was manager of the St. Louis branch of that company in 1924, was read in evidence on behalf of plaintiff. His testimony was to the effect that defendant told the witness that the flue of his house was insufficient and that he intended to try to get plaintiff to pay a part of the expense of building a new one; that defendant said the heating system job was satisfactory except for the draft conditions.

Defendant testified that he is engaged in the furniture repair business; that when the heating system was put in operation, the first fire was made by Mr. Rohlfingmeyer, who worked for defendant at defendant's home, and "it smoked so badly we could hardly stand it." He said that thereafter he continued to have fire in the furnace from time to time, and that the smoke continued and plaintiff did not do anything to relieve the condition. Defendant further testified that he then had the chimney rebuilt with a double flue in January, 1925, at a cost of $150. During defendant's testimony, the following occurred:

"Q. Now, then, did you do anything else in respect to getting the place in shape to be properly heated? A. Had it weather-stripped.

"Q. Who did the weather-stripping? A. Monarch.

"Q. Well, that was the Kuhlman Weather Stripping Company, is that right? A. Yes, sir.

"Q. Do you know what that cost?"

At this point counsel for plaintiff objected on the ground that plaintiff's written proposal required the owner to do any and all work that should be necessary to put doors, windows and other parts of the building in thorough repair so as to avoid undue waste of heat, saying:

"Your Honor, please, weather stripping, as your Honor knows, is a customary thing done to prevent undue waste of heat. If it was required, he should have done it under this contract."

The court overruled plaintiff's objection, and he saved his exception.

Defendant then testified, over the objection and exception of plaintiff, that he paid the Kuhlmann Metal Weather Strip Company for weather stripping his home the sum of $128.50. Further on, defendant testified as follows:

"Tell the court and jury what, if anything, in addition to that you did in order to get the premises in such shape that you could get adequate heat. A. I had the entire outside of the building covered with Johns Manville asbestos shingles."

Counsel for plaintiff objected to the foregoing testimony on the ground that it was not material or relevant to the controversy and on the further ground that there was no duty on plaintiff to do anything of that sort, and that if it were necessary to prevent an undue loss of heat, it would be de...