Christine v. Luyties

• Decision Date: 04 December 1919
• Docket Number: No. 20471.,20471.
• Citation: 280 Mo. 416,217 S.W. 55
• Parties: CHRISTINE v. LUYTIES.
• Court: Missouri Supreme Court

217 S.W. 55

280 Mo. 416

CHRISTINE v. LUYTIES.

No. 20471.

Supreme Court of Missouri, Division No. 2.

December 4, 1919.

Rehearing Denied January 6, 1920.

Appeal from St. Louis Circuit Court; Benjamin K. Klene, Judge.

Action by Clyde M. Christine against Herman C. G. Luyties. Judgment for plaintiff on report of referee, and defendant appeals. Affirmed.

This action was commenced by plaintiff in the circuit court of the city of St. Louis, Mo., 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 32 houses at Kenwood, St. Louis county, Mo., upon land owned by defendant, located a short distance northwest of the city of St. Louis, Mo. 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 1st of April, 1907, plaintiff and defendant entered into an oral agreement by the terms of which plaintiff agreed to superintend the erection of 32 houses on defendant's land at Kenwood, and was to receive as compensation therefor 2 per cent. of the cost of labor and materials expended in and about the erection of said houses, and also 25 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 $250, and that, in case any of the houses should not be sold at their completion, plaintiff should receive $250 on such unsold houses; that plaintiff superintended the erection of said' houses; that 2 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 10 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 32 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 2 per cent. of the cost of material and labor and 25 per cent. of the net profits which should be realized by defendant from said houses; that the 2 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 32 houses erected upon 40 lots in said subdivision 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 2 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, and lots 40 and 41, block 6; that the reasonable value of said 8 houses, exclusive of the lots on which they are located, is $15,000; that the total amount realized from the 24 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 building on lots 40 and 41 of block 6 in Kenwood Springs; that on October 2, 1911, plaintiff sued in the justice's court of Henry Pfeffle to recover $369.77 alleged to be due him as compensation for the erection of the building on said lots 40 and 41; that said cause was tried by Justice Frank M. Kleiber and is now under submission before him; that while said action was pending this suit was brought covering the same cause of action; that by reason of foregoing plaintiff has split his cause of action; that by reason thereof this action should be abated.

The second count of petition is on quantum meruit for services in superintending the erection of said 32 buildings in 1907-08; said services consisted of making plans and sketches, employing and discharging men, passing on accounts and bids, overseeing the work, letting contracts for part, ordering materials, making estimates for the work, advising defendant concerning same, etc.; that the services aforesaid were reasonably worth $9,943.57, for which judgment was asked.

The amended answer to second count contains a general denial, and pleads substantially the same facts as are set out heretofore by way of answer to first count of petition. The defenses pleaded in the amended answer were substantially as follows:

First. A general denial.

Second. It is claimed by way of defense that plaintiff agreed to erect the houses at a certain price, and that the cost of the houses exceeded the price $30,184.81, to defendant's net loss of $23,209.54.

Third. A plea of abatement based on the fact that plaintiff Sued in a justice's court upon a part of the same cause of action pleaded herein. (This defense is eliminated by defendant.)

Fourth. By way of defense a plea that plaintiff negligently and carelessly erected said houses at a cost in excess of the price at which plaintiff agreed to erect the same to defendant's loss in the sum of $30,184.81.

Fifth. A counterclaim was pleaded, based on the allegation that plaintiff carelessly and negligently erected said houses, and that the cost of same exceeded the price agreed upon in the sum of $30,184.81, to defendant's damage, for which he asks judgment.

The reply to the new matter in the amended answer is a general denial.

The evidence taken before the referee, Judge Homer, covered a wide range, and comprises over 1,100 pages of oral testimony, aside from the exhibits. The referee in his report states his conclusions as to the facts as follows:

"It appears from the conversation which plaintiff and defendant had in April, 1907, that they, entered into the following agreement: The plaintiff promised and agreed to superintend the erection of certain buildings on certain lots owned by defendant, located in United States survey 1913, at Kenwood, St. Louis county, Mo., take general charge of the construction of the said houses, furnish the plans, O. K. the accounts, and the defendant agreed to pay him an amount equal to 2 per cent. of the total cost of the construction of the houses and buildings and 25 per cent. of the profits accruing therefrom.

"I conclude that there was no agreement on the part of the defendant to guarantee the plaintiff any specific profit on any house, and that the defendant did not guarantee to pay the plaintiff a profit of $250, on each house if the same did not sell at a profit of $1,000.

"I conclude that there was no agreement on the part of the plaintiff to build the houses for any specific amount, and, further, that after many of the houses were furnished by the plaintiff, the defendant ordered him to make many...