City of St. Louis ex rel. Sears v. Southern Surety Co.
| Decision Date | 24 June 1933 |
| Docket Number | 32181 |
| Citation | 62 S.W.2d 432,333 Mo. 180 |
| Parties | City of St. Louis ex rel. Graham C. Sears et al. v. Southern Surety Company, a Corporation et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis; Hon. Claude O Pearcy, Judge;
Modified and affirmed.
Anderson Gilbert & Wolfort for Southern Surety Company; McLaran & Garesche and E. H. Wayman for John J. Clark.
(1) The plaintiffs cannot recover on the bond sued on; they are seeking to recover for labor and materials furnished by others, for profit and other items. No recovery can be had against defendant Southern Surety Company by the plaintiffs for such items. Lincoln County v. Dupont Co., 32 S.W.2d 292; Wiss v. Royal Indemnity Co., 219 Mo.App 568; Erath v. Allen, 55 Mo.App. 107; Kansas City v. McDonald, 80 Mo.App. 444; State Highway Commission v. Coopers Co., 268 S.W. 701. (2) The plaintiffs failed to prove their allegation that they purchased the material from Dahlstrom Metallic Door Company. On the contrary, the undisputed written evidence introduced by both plaintiffs and defendants shows that plaintiffs did not purchase the material from Dahlstrom, but that Dahlstrom delivered the material direct to Clark and billed Clark direct for the material. (3) Since under Instructions 2 and 3 the jury could not allow any recovery for the material furnished by Dahlstrom or for the labor furnished by others and paid for by Sears & Piou, no recovery can be had by the plaintiffs, as the only material furnished amounted to $ 140, and plaintiffs admit that defendant Clark has paid the plaintiffs more than $ 1,900. The jury disregarded these instructions, and therefore the verdict cannot stand. Allen v. Transit Co., 183 Mo. 432; Rafferty v. Ry., 15 Mo.App. 562. (4) Instruction 1, given at the request of plaintiffs, is erroneous for the following reasons: (a) It permits recovery for other than labor and materials, and the bond provides only for the payment for labor and material; the subcontractor's profit, office overhead, cost of supervision, etc., is not protected by this bond, but this instruction authorizes recovery for all such items. Mo. Highway Comrs. v. Cooper Co., 268 S.W. 701. (b) There is no evidence on which to base the instruction; the testimony was undisputed; it was documentary, and was offered by plaintiffs, that under the contract $ 16,000 was not to be paid to plaintiffs, but that $ 13,000 was to be paid to Dahlstrom by Clark, and $ 3,000 was to be paid to plaintiffs by Clark. (c) The instruction conflicts with Instructions 2 and 3. (d) This instruction submits questions of law to the jury and gives the jury a roving commission and furnishes them no guide by which they are to determine whether or not plaintiffs entered into the contract on their own behalf, or, as the contract expresses it, "as agent for the Dahlstrom Metallic Door Co." Carroll v. Young, 267 S.W. 440; Henry v. Railroad, 282 S.W. 425; Albert v. Besel, 88 Mo. 150. (5) The judgment rendered by the court was erroneous in that it was a judgment only for the amount of damages assessed by the jury and not for the penalty of the bond with special execution as provided by Section 2883, R. S. 1929, and, therefore, the judgment must be reversed. State to the use of Gates v. Fitzpatrick, 64 Mo. 185; State ex rel. v. Hollenbeck, 68 Mo.App. 375; State v. Cooper, 79 Mo. 464; State ex rel. Mache v. Randolph, 186 S.W. 592. (6) The demurrer to the evidence at the close of the plaintiffs' case and at the close of the whole case should have been sustained because: (a) The plaintiffs failed utterly to discharge the burden which was on them to prove that the contract offered in evidence was their own. State ex rel. Sears & Piou v. Clark, 35 S.W.2d 986. (b) There was no extrinsic evidence offered by the plaintiffs sufficient to make a prima facie showing that the contract offered in evidence was plaintiffs' own contract, but even if there were such prima facie showing, it was completely overcome by documentary evidence to the contrary. Darlington Lbr. Co. v. Railroad, 243 Mo. 224; Kazee v. Kansas City Life Ins. Co., 217 S.W. 339; Shaw v. Am. Ins. Union, 33 S.W.2d 1052; Waters v. Life Assn., 50 S.W.2d 188. (c) The plaintiffs were not entitled to recover on the bond sued on because they were neither material men, laboring men, nor mechanics, for whose benefit alone suit on the bond could be maintained. Lincoln Co. v. DuPont DeNemours Co., 32 S.W.2d 292. (d) There was a total failure to prove the allegation in the petition that plaintiffs "purchased the material" from the Dahlstrom Metallic Door Co. (7) Instruction 1 given to the jury by the court, at the request of the plaintiffs, is erroneous as submitting to the jury's determination a proposition or question of law. Paving Co. v. Surety Co., 238 S.W. 119; Henry v. Railroad Co., 282 S.W. 424; Jones Store Co. v. Kelly, 36 S.W.2d 683. (8) The jury wholly disregarded the evidence and ignored the instructions of the court both in their verdict on the plaintiffs' cause of action and on the second count of the defendant Clark's counterclaim, and the verdict should have been set aside on that account. Financial Co. v. Surety Co., 276 Mo. 183; Roman v. Boston Trading Co., 87 Mo.App. 186; Power Co. v. Coffee Co., 95 Mo.App. 412; Sec. 1002, R. S. 1929.
Greensfelder & Grand and F. M. Hemker for respondents.
(1) Failure to bring up the entire record precludes a party from questioning the action of the trial court on a demurrer to the evidence or from raising the question as to whether there is any evidence to establish a fact. Bertke v. Hoffman, 50 S.W.2d 107. (2) On a review of defendants' demurrer to the evidence the Supreme Court accepts plaintiffs' evidence as true and indulges every reasonable and favorable inference to be drawn therefrom. Brock v. Mobile Railroad Co., 51 S.W.2d 100; Evans v. Partlow, 16 S.W.2d 212. (3) Where documentary evidence is offered in proof of a fact the inferences to be drawn therefrom are for the jury. Chapman v. Ry. Co., 146 Mo. 492; Carp v. Queen Ins. Co., 104 Mo.App. 518; Primm v. Haren, 27 Mo. 211. (4) Plaintiffs are within the purview of the bond such on because it is broader than the usual statutory bond. Hilton v. Universal Const. Co., 202 Mo.App. 672, 216 S.W. 1036; St. Louis to the use of Contracting & Supply Co. v. Hill-O'Meara Const. Co., 175 Mo.App. 555; Berger Mfg. Co. v. Hiram Lloyd, 209 Mo. 681; R. S. 1929, sec. 2890; R. S. 1919, sec. 1040. (5) Where a contract is ambiguous the meaning to be attached thereto is a question for the jury, and not the court. Glaser v. St. Louis University, 293 S.W. 435; Yost v. Silvers, 138 Mo.App. 524. (6) The erroneous submission of a proposition of law to the jury is harmless error where decided correctly. Comfort v. Ballingal, 134 Mo. 281; Chilton v. Ry. Co., 114 Mo. 88. (7) Where on a conflict of evidence two theories of a case are presented by separate lines of instructions, such instructions are not in conflict. Coshow v. Otey, 222 S.W. 808. (8) Where surety and principal are jointly bound on the same instrument admissions of the principal are binding on the surety, and it is immaterial whether such admissions are part of the res gestae or not. State ex rel. Sears & Piou v. Clark, 35 S.W.2d 986; Indemnity Ins. Co. of America v. Krone, 177 Ark. 953, 60 A. L. R. 1493; Armstrong v. Farrar, 8 Mo. 627; Hurst & Salmon v. Robinson, 13 Mo. 82; Adair v. Kansas City Ry. Co., 282 Mo. 133, 220 S.W. 920; St. Charles Savings Bank v. Denker, 275 Mo. 607, 205 S.W. 208. (9) In an action on a penal bond, where a judgment is erroneously entered for the amount of damages rather than the penalty of the bond, with special execution, as provided by statute, the appellate court will correct the judgment. R. S. 1919, sec. 1063; State ex rel. Rife v. Reynolds, 137 Mo.App. 267; State ex rel. Moore v. Sandusky, 46 Mo. 382; State to the use of W. Monks v. Bacon, 24 Mo.App. 405. (a) Especially is this true where the complaining party fails to file a motion in arrest or direct the trial court's attention to the error in motion for a new trial. State ex rel. Karrenbrock v. Miss. Valley Tr. Co., 209 Mo. 492.
Westhues, C. Cooley and Fitzsimmons, CC., concur.
This is the second appeal in this case. The first appeal was granted to the St. Louis Court of Appeals from a judgment in defendants' favor. The Court of Appeals reversed and remanded the case for a new trial. [See City of St. Louis ex rel. v. Clark, 35 S.W.2d 986.] In the meantime the interest that accrued increased plaintiffs' claim and at the second trial plaintiffs received a judgment in the sum of $ 8,778. Hence the appellate jurisdiction in this court.
The suit was based on the theory that plaintiffs, as subcontractors, furnished certain labor and material for the construction of a public building. Defendant John J. Clark was the original contractor, and defendant Southern Surety Company, surety on Clark's bond. Plaintiffs' suit is on the bond for the balance due by Clark to plaintiffs. Clark entered into a contract with the city of St. Louis, Missouri, for the construction of a men's infirmary building on the grounds of Robert Koch Hospital. This is a public building, therefore, Clark was required to give a bond, as provided for by Section 1040, Revised Statutes 1919, now Section 2890, Revised Statutes 1929, Laws, 1925, page 127, 1 Missouri Annotated Statutes, page 744.
By the contract here in question Clark sublet the installation of the metal door frames and partitions, as was contemplated on pages 23 to 25, inclusive, of the specifications governing the construction of the building. The specifications called for the material to be equal to that manufactured by the Jamestown Metal Door Company or the ...
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