City of Kennett v. Katz Construction Company
| Decision Date | 16 February 1918 |
| Citation | 202 S.W. 558,273 Mo. 279 |
| Parties | CITY OF KENNETT, Appellant, v. KATZ CONSTRUCTION COMPANY and AMERICAN SURETY COMPANY |
| Court | Missouri Supreme Court |
Appeal from Bollinger Circuit Court. -- Hon. Peter H. Huck, Judge.
Reversed and remanded (with directions).
Orville Zimmerman, Ely, Pankey & Ely, William Morgan and Jones & Jones for appellant.
The court erred in granting a new trial for the reason assigned to-wit: that the court had erred in the trial of said cause in refusing defendant's instruction number 14 on the measure of damages. (a) Because plaintiff's instruction number 2, given by the court at the trial of said cause properly declared the measure of damages applicable to this cause. (b) Because the defendant's instruction number 14 did not properly declare the measure of damages applicable to this cause and would have been error if given. Couch v Railroad, 252 Mo. 37; Brokerage Co. v Campbell, 164 Mo.App. 20; Foundry Co. v. Moulder's Union, 177 Mo.App. 90; Tirry v. Hogan, 181 Mo.App. 61; Norman v. Vandenberg, 157 Mo.App. 490; Shoemaker v. Crawford, 82 Mo.App. 490; Kerns & Lorton v. Telegraph Co., 174 Mo.App. 439; Railroad v. Wingerter, 124 Mo.App. 434; Manter v. Truesdale, 57 Mo.App. 446; Simmons v. Whitman, 113 Mo.App. 357; Danforth & Armstrong v. Railroad, 93 Ala. 620, 99 Ala. 338; Town Co. v. Lincoln, 56 Kan. 150; Wolcott v. Mount, 36 N.J.L. 270; Wakeman v. Mfg. Co., 101 N.Y. 205; Bagley v. Smith, 10 N.Y. 496; Allison v. Chandler, 11 Mich. 555; Gilbert v. Kennedy, 22 Mich. 129; Railway v. Hepner, 83 Tex. 140; Oil Co. v. Blair, 113 Pa. 88; Cordage Co. v. Luthuy & Co., 98 Ky. 589.
W. G. Dinning and Oliver & Oliver for respondent.
(1) The granting of a new trial is within the sound discretion of the trial court, and unless it is manifest that its judicial discretion has been abused, its ruling in that regard will not be disturbed by an appellate court. Bank v. Wood, 124 Mo. 76; Noble v. Kansas City, 95 Mo.App. 167; Ferrell v. Transit Co., 103 Mo.App. 454; Ridge v. Johnson, 129 Mo.App. 541; Morris v. Kansas City, 117 Mo.App. 298; Karnes v. Wind, 126 Mo.App. 712; Lockwood v. Ins. Co., 47 Mo. 50; Choquette v. Railroad, 152 Mo. 257; Devine v. St. Louis, 257 Mo. 470; Wells v. Andrews, 133 Mo. 667. (2) When the order of the trial court does not specify the ground upon which a new trial is granted (as in the case at bar) it will be sustained if any of the grounds set out in the motion are sufficient. Hewitt v. Steele, 118 Mo. 473; Metropolitan, etc., Co. v. Webster, 193 Mo. 351; Sharp v. Adam, 121 Mo.App. 565; Roman v. Boston Co., 87 Mo.App. 186; Secrist v. Bank, 104 Mo.App. 113; Bank v. Wood, 124 Mo. 76-77; Devine v. St. Louis, 257 Mo. 470; State ex rel. v. Thomas, 245 Mo. 65. (3) There were many grounds upon which trial court was warranted in granting defendant a new trial. First, the jury's verdict was excessive. (a) Where by their contract, parties agree upon the measure of damages or upon the method for the ascertaining of the measure of damages, such provision is as binding as is any other part of the contract. Surety Co. v. Woods, 45 C.C.A. 282; Simmons v. Whitman, 113 Mo.App. 357. (b) The trial court has a large discretion in granting new trials upon the ground that the verdict is excessive. Morrell v. Lawrence, 203 Mo. 381. Second, the statement by plaintiff's counsel during the trial without being under oath of material evidential facts prejudicial to the defendant. Holliday v. Jackson, 21 Mo.App. 660. Third, the possibility of some of the jurors having been influenced by the statements or conduct of one of the parties made or done while not on the witness stand (the treating by the city clerk of some of the jurors during the progress of the trial). Tatlow v. Grantham, 66 Mo.App. 509; Choquette v. Railroad, 152 Mo. 266. Fourth, the admission at the trial of irrelevant evidence prejudicial to defendant, namely the expert testimony as to the costs of completing the work as the measure of damages, when the parties had by their contract fixed another method of ascertaining said measure of damages. Surety Co. v. Woods, 45 C.C.A. 282; Simmons v. Whitman, 113 Mo. 357; Hunt v. Railroad, 36 F. 481. Fifth, the entering into a new and supplemental contract materially affecting and materially changing the whole plan of construction without notice to or consent of the defendant surety company. Hawman v. McLean, 139 Mo.App. 429; United States v. Freel, 186 U.S. 309; Eldridge v. Fuhr, 59 Mo.App. 44; Killoren v. Meehan, 55 Mo.App. 427; Beers v. Wolf, 116 Mo. 179. Sixth, the admission of all testimony relative to breach of contract by Katz Construction Company after the showing by defendant surety company that the city first breached the contract by reason of its failure to pay for the work as it contracted and agreed to do. Construction Co. v. Butler, 165 Cal. 497; McCullough v. Baker, 47 Mo. 410; Bean v. Miller, 69 Mo. 384; Morgan v. Regan, 48 Mo.App. 461; Bank v. Fidelity & Deposit Co., 40 So. 415, 5 L.R.A. (N.S.) 418; Elliott on Contracts, sec. 3699. (4) The liability of a surety company cannot be extended by implication and the courts will carefully guard its rights and protect it against a liability not strictly without the expressed terms of its contract. Miller v. Suart, 9 Wheat, 680; Smith v. United States, 2 Wall. 234; Livingston v. Moore, 44 N.Y.S. 125; Page v. Kreaky, 137 N.Y. 307; National M. B. Assn. v. Conkling, 90 N.Y. 116. Here a new supplemental contract was entered into between the plaintiff city and the Katz Construction Company, without consent of or notice to defendant surety company, changing not only the work, plans and specifications, but the whole method of construction.
This is an appeal from an order granting a new trial. The appellant, the city of Kennett, to be designated herein as the city, brought suit in the circuit court of Dunklin County against the Katz Construction Company and the American Surety Company, to be designated herein respectively as the contractor and the surety company, each a corporation, upon a bond for $ 18,000 of the former as principal and the latter as surety, given to the city to insure the faithful performance of a contract for furnishing the necessary materials and labor to construct certain lines of sewers in the streets and alleys of the city and for the performance of other work incident thereto and necessary to facilitate the disposal of sewage, for which the contractor was to be paid a total sum of $ 35,204.06, in the amounts and at the times stated in the contract; and which contract it was alleged had been breached by the contractor. The surety company filed its separate answer. The city dismissed as to the contractor. A change of venue was granted on the application of the surety company to Bollinger County where, upon a trial, a verdict was rendered for the city in the sum of eighteen thousand dollars. A motion for a new trial was sustained, unless the city would enter a remittitur. This it refused to do, and perfected its appeal to this court.
The contract and bond on which this action is based contains among other provisions, the following:
The contract also provided that the work should be completed within nine months after its execution, which was in April, 1913, and for each day's delay the contractor should pay $ 5 per day as liquidated damages. Thereupon the contractor commenced work under the contract. Subsequently certain changes were made in the plans and specifications at the request of the contractor. According to the testimony of expert engineers these changes did not increase the cost of construction or entail a delay in the work.
The work progressed under the contract until September 1, 1914. During this time thirteen estimates were rendered by the contractor to the city, aggregating $ 32,436.86. Of this amount ten per cent was withheld in accordance with the contract to be paid upon the completion and acceptance of the work, and the contractor was paid the difference, to-wit, $ 29,193.17, less $ 645 held by the city for delays in the work, which constituted the aggregate up to that time of the penalty therefor of $ 5 per day as prescribed in the contract. Thereafter estimate number 14 was rendered for work performed during the month of September, 1914, and the contractor was informed that the city was temporarily out of funds necessary to pay that estimate. The contractor then agreed that if the city would pay six per cent interest on the amount due, it would carry the warrant and proceed with the work, whereupon the warrant was issued for estimate number 14 and delivered to it, and same was later paid with interest thereon. Thereafter estimate number 15 for work performed during the month of October, 1914, was rendered by the contractor to the city, and was settled in the same manner as estimate number 14.
After the delivery by the city of its warrant to the contractor in payment of estimate number 15 and the acceptance of same by it, owing to the amount of water in the ground where the sewers were being constructed, it was mutually agreed that work on the system should be suspended until such time as it was practicable to resume...
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