Christine v. Luyties
| Decision Date | 06 January 1920 |
| Parties | CLYDE M. CHRISTINE v. HERMAN C. G. LUYTIES, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Benjamin K. Klene Judge.
Affirmed.
A. & H N. Arnstein for appellant.
(1) The filing of a counterclaim for damages for alleged breaches of contract does not abrogate the contract so far as the other party is concerned, and his right of recovery, if any, is still limited by the terms of the contract, subject to a deduction for the amount of damages, if any, awarded on the counterclaim. Moore v. Gaus & Sons Mfg. Co., 113 Mo 98. (2) In an action upon quantum meruit, where there is a contract governing the amount of the plaintiff's compensation, the amount of recovery is, in all cases, limited by the contract. 5 Corpus Juris, p. 1411, sec. 91-A; Johnston v. Star Bucket Pump Co., 274 Mo. 414; American Surety Co. v. Fruin-Bambrick Construction Co., 182 Mo.App. 667; Daniel v. McDaniels, 184 Mo.App. 354; Owen v. Hadley, 186 Mo.App. 1; Moore v. Gaus & Sons Mfg. Co., 113 Mo. 98; Williams v. Chicago, etc., Ry. Co., 112 Mo. 463; Yeats v. Ballentine, 56 Mo. 538; Evermann v. Cemetery Assn., 61 Mo. 489; Mansur v. Botts, 80 Mo. 651. (3) Changes or additions do not operate to rescind or abrogate the builder's contract. 9 Corpus Juris, p. 721, sec. 55-E; Haynes, Spencer & Co. v. Second Baptist Church, 88 Mo. 285; Phillippi v. McClain, 5 Mo.App. 586; Menne v. Neumeister, 25 Mo.App. 300; Beggs v. Shelton, 173 Mo.App. 127. (4) Where parties engage in a joint venture, all expenses should be computed in order to determine the profit on such venture. And where the transaction involves the acquisition or improvement of unoccupied real estate, interest, taxes and the cost of general improvements are necessarily chargeable. Campbell v. Northwest Eckington Improvement Co., 229 U.S. 561, 57 L.Ed. 1331; Barry v. Bernays, 162 Mo.App. 27. (5) A written statement of a witness, if contradictory to his oral testimony, is always admissible in evidence to impeach him. Hence the statement of disbursements on the Kenwood venture, showing the cost of general improvements, as a charge against the profits, made by the witness Dowler, being Exhibit 182, should not have been excluded. Farrar v. Metropolitan Street Ry. Co., 249 Mo. 210; Prewitt v. Martin, 59 Mo. 325; Sullivan v. Jefferson Avenue Ry. Co., 133 Mo. 1; Spoonemore v. Cables, 66 Mo. 579; Greenleaf, Evidence, sec. 465. (6) Where a builder agrees to construct houses for a specified sum, the cost to the owner, above such sum, may be recovered from the builder, as for breach of contract. 9 Corpus Juris, 809, sec. 148; Ib., 735, sec. 74. (7) Where there is more than one count in a petition, and plaintiff fails to recover on all counts, the court should apportion the costs, especially where substantial costs were incurred in connection with the counts upon which plaintiff failed to recover. Link v. Hathaway, 143 Mo.App. 502; R. S. 1909, secs. 1971, 2266.
Johnson, Houts, Marlatt & Hawes and Earl M. Pirkey for respondent.
(1) In a case tried without a jury where the appellate court passes on the evidence, rulings on evidence are not reversible error. Home Telephone Co. v. Carthage, 235 Mo. 658; Hanson v. Neal, 215 Mo. 271. (2) Where performance is hindered by the other party a suit on quantum meruit will lie and plaintiff is not in such case limited to the contract price. Joern v. Bang, 200 S.W. 737; Johnston v. Star Bucket Pump Co., 274 Mo. 414.
RAILEY, C. White and Mozley, CC., concur.
This action was commenced by plaintiff in the Circuit Court of the City of St. Louis, Missouri, on October 27, 1911, in two counts. The first is based upon an alleged contract between plaintiff and defendant, in regard to the construction of thirty-two houses at Kenwood, St. Louis County, Missouri, upon land owned by defendant, located a short distance northwest of the City of St. Louis. The second, is upon a quantum meruit, based upon substantially the same facts as are pleaded in the first count of petition.
The first count alleges, in substance, that, about the first of April, 1907, plaintiff and defendant entered into an oral agreement by the terms of which plaintiff agreed to superintend the erection of thirty-two houses on defendant's land at Kenwood, and was to receive, as compensation therefor, two per cent of the cost of labor and materials expended in and about the erection of said houses, and also twenty-five per cent of the profits which should accrue to defendant from time to time on the sale of said houses, and the lots on which they were to be located; that defendant guaranteed to plaintiff that the profits on each house, erected under said agreement, including the lot or lots, should not be less than two hundred and fifty dollars, and that in case any of the houses should not be sold at their completion, plaintiff should receive two hundred and fifty dollars on such unsold houses; that plaintiff superintended the erection of said houses; that two per cent of the total cost of the labor and materials in said buildings and houses amounted to $ 1,719.46. Said count sets out the cost of labor and material in each of said houses, amounting in the aggregate to $ 85,974.02. It is then alleged that, after deducting the value of the lots, on which the buildings were to be located, the profits on ten of said houses, was 25 per cent of $ 12,516.46, or $ 3,129.11; that under said guaranty, plaintiff was entitled to receive, on the sale of the remaining 22 lots, $ 5,500; that by virtue of said contract, plaintiff is entitled to $ 10,348.57, less the sum of $ 405, paid by defendant, leaving the sum of $ 9,943.57, for which he prays judgment, with 6 per cent interest from January 1, 1909.
Appellant, in his amended answer to said first count, denies each and every allegation therein; and alleges that he was the owner of the Kenwood lots, on April 1, 1907; that on or about said date, he entered into a contract with plaintiff, as a contractor and builder, to superintend the erection of thirty-two houses, upon lots owned by defendant; that plaintiff was to purchase the material and furnish the labor, all of which was to be paid for by defendant; that before the work was commenced, it was agreed between them as to what each of said houses should cost in their erection; that plaintiff was to receive for his services, in superintending said work, two per cent of the cost of material and labor, and twenty-five per cent of the net profits which should be realized by defendant from said houses; that the two per cent commission was to be included in computing the cost of said houses; that the price of the lots from time to time was to be fixed by defendant prior to the erection of the houses; that, as constituting a part of the cost of said houses, interest upon the money advanced was to be added until the houses were sold and paid for; that the cost of erecting a depot at Kenwood, a sewer system placed in said subdivision, septic tank, streets and sidewalks and all other general expenses, including advertising, printing, telephone service, salaries, commissions on sales, taxes, street lights and insurance, together with interest thereon, were to be apportioned against each lot, in proportion that the number of lots, upon which said houses were to be erected, should bear to the total number of lots then owned by defendant in said subdivision.
It is alleged, that in pursuance of said contract, there were thirty-two houses erected upon forty lots in said sub-division, between April 1, 1907, and September 1, 1907; that the value of the lots built upon were, from time to time, agreed upon, before the construction of said houses was commenced; that the total amount expended by defendant, in the erection of said houses, is $ 93,828.82; that the price at which said houses were to be erected by plaintiff, is $ 63,644.01; that the value agreed upon for the respective lots is $ 29,330; that the two per cent commission to plaintiff upon the cost of said houses is $ 1,875.57; that the total cost of said houses is $ 95,705.39; that the cost of the depot was $ 206; the sewer system, $ 8,126.86; septic tank, $ 637.14; general expenses, including advertising, printing, telephone service, salaries, commissions on sales, taxes up to January 1, 1908, street lights and insurance, $ 25,566.93, and the making of streets and sidewalks, $ 14,030, making a total of $ 48,557.02; that one-fourth of said last named sum was to be added on account of the extra lots occupied by the buildings, amounting to $ 12,139.25; that the total cost of said buildings, without interest and without the lots, is $ 107,844.64; that the interest and taxes accrued to date, on said lots, is $ 10,000, making the total cost, $ 117,844.64; that the excess cost of said houses, over the figures at which they were to be erected by plaintiff, is $ 30,184.81; that there remained on hand and unsold the buildings upon lot 9, block 4; lot 13, block 4; lot 45, block 5; lot 25, block 6; lot 43, block 6; lot 37, block 6; lot 11, block 2; lots 40 and 41, block 6; that the reasonable value of said eight houses, exclusive of the lots, on which they are located, is $ 15,000; that the total amount realized from the twenty-four houses sold, is $ 79,635.10, which, added to the $ 15,000, makes $ 94,635.10, exclusive of the value of the lots, resulting in a net loss to defendant of $ 23,209.54.
It is further alleged, that said houses were negligently constructed at a cost largely in excess of the price at which they were to be erected, to the damage of defendant in the sum of $ 30,184.81; that amongst the houses plaintiff contracted to erect for defendant, under the contract aforesaid, was a...
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