Cross v. Fletcher, No. 27491.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtAnderson
Citation216 S.W.2d 101
PartiesCROSS v. FLETCHER.
Docket NumberNo. 27491.
Decision Date21 December 1948
216 S.W.2d 101
CROSS
v.
FLETCHER.
No. 27491.
St. Louis Court of Appeals. Missouri.
December 21, 1948.

Appeal from Circuit Court, St. Louis County; Raymond E. LaDriere, Judge.

"Not to be reported in State Reports."

Suit for damages for breach of contract by H. J. Cross against L. F. Fletcher. Judgment for defendant and plaintiff appeals.

Affirmed.

Charles F. Ballak, of St. Louis, for appellant.

E. Gary Davidson, of Clayton, for respondent.

ANDERSON, Judge.


This is a suit for damages for breach of contract. The trial below resulted in a verdict and judgment for L. F. Fletcher, defendant, from which judgment H. J. Cross, plaintiff has appealed.

216 S.W.2d 102

Plaintiff, a building contractor, was employed to build a church building called the Marvin Park Methodist Church. He sublet the plastering work to defendant. After defendant had partially completed the work of plastering he abandoned the job. Plaintiff then sublet the plastering to another contractor named Fox, who completed the work. This suit is for the amount plaintiff paid Fox for completing the job.

The defense interposed was that defendant was justified in abandoning work under the contract by reason of a breach of the contract on plaintiff's part. This breach of contract, according to defendant's theory, resulted from plaintiff's action in deviating from the building plans and specifications in the construction of the building, and in failing to follow a custom of the trade which required the laying of the concrete floor in the basement, called for in the plans and specifications, before the work of plastering should begin.

Defendant's position is that his bid for the plastering work was based upon the plans and specifications and upon an observance of said trade custom, and that plaintiff's deviation from the plans and specifications, and his disregard of the custom of the trade, resulted in a change of the conditions contemplated in his contract and increased the cost of labor for the execution of the same.

The issue here is whether the court erred in refusing to give to the jury an instruction directing a verdict for plaintiff, and whether there was error in defendant's principal instruction.

The basement was the only part of the church building that was constructed at the time of the events giving rise to this action, and the contract in question was for the plastering of the rooms in this basement. The part of the basement to be plastered under the contract consisted of an auditorium, hall and stairway entrance, kitchen, women's toilet, men's toilet, and a classroom. The auditorium was 68 feet long and 39 feet 6 inches wide. The plans and specifications called for a height of 12 feet 8 inches from the finished floor to the ceiling. However, at the time plaintiff and defendant entered into the plastering contract, and at the time defendant started work thereunder, the concrete floor of the auditorium had not been layed. As a result, the height of the auditorium ceiling, from the dirt floor, was considerably higher than the height called for by the plans and specifications. According to defendant's testimony the height of the ceiling at that time was 16 feet. One of the witnesses for defendant testified that the height of the ceiling at the front end of the auditorium was 17 feet, and in the rear 16 feet 7 inches. One of plaintiff's witnesses testified that it was 12 feet 5 or 6 inches from the dirt floor to the ceiling; another witness for plaintiff testified that it was 13 feet, and still another put it "around 12 or 14 feet, I guess, or maybe more." Plaintiff testified that the auditorium ceiling was 12 feet 8 inches high.

Defendant testified that in the building trade it is the custom for the floors of a building to be layed before the plastering work is started. He further testified that if this custom is not observed it results in increased cost for the plastering; that it necessitates the use of a stationary scaffold instead of a rolling scaffold. When a stationary scaffold is used it is necessary to tear down and rebuild it every time it is moved. This results in delay and increased cost. Defendant stated that it would take two and one-half hours to tear down and rebuild a stationary scaffold each time it was moved; that a rolling, scaffold could be moved in five minutes. Defendant testified he had intended to use a rolling scaffold on this job.

It also appears from defendant's evidence that where there is an increased height of the ceiling brought about by the failure to lay the floor, there is an increase in cost due to the fact that the men work slower as a result of extra precaution taken against falling.

Near the ceiling of the auditorium were located certain pipes, being heating pipes, and pipes for carrying hot and cold water. According to the plans and specifications, these pipes were to be concealed above the plaster in the ceiling except where the four beams crossed. At those places the pipes were to be brought under and around the beams and then back into the ceiling behind the plaster. Instead of constructing

216 S.W.2d 103

the pipes in accordance with the plans and specifications, plaintiff ran them exposed, underneath the beams. This, according to defendant's testimony, made the work of plastering slower and thus increased the cost. Plaintiff's evidence was to the contrary.

The evidence of both parties shows that in making his bid defendant made use of the plans and specifications. The price agreed upon was $1,608. Later, a charge of $40.86, the cost of extra work, was added, making the total amount to be due defendant, upon completion of the work, $1,648.86. Plaintiff testified that defendant viewed the premises before making his bid. This was denied by defendant.

After defendant's bid was accepted, plaintiff requested that defendant put his lather to work. Defendant then went to the premises with some scaffolding for the lather. He intended to use a rolling scaffold, since it was such a large room. At that time, according to his testimony, he found that the concrete floor was not in and the dirt floor rough and uneven. As a result, he had to get a different scaffold. He stated that he called this to plaintiff's attention and the latter said that the congregation did not have a lot of money, but that he had the job on a "cost-plus" arrangement and stated: "You go ahead and I will see that you don't lose any money." Defendant stated he told plaintiff that on account of the floor not being in, the cost to him would be twice as much as it would be with the floor layed.

Defendant further testified that he started the plastering work. After the work had progressed, defendant estimated the extra cost made necessary by reason of the changed position of the...

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1 practice notes
  • Universal Underwriters Ins. Co. v. State Auto. and Cas. Underwriters, No. 10340
    • United States
    • Supreme Court of Arizona
    • 2 Febrero 1972
    ...40, 369 P.2d 777 (1962); Wise v. Reeve Electronics, Inc., 183 Cal.App.2d 4, 6 Cal.Rptr. 587 (1960); Cross v. Fletcher, (Mo.App., 1948), 216 S.W.2d 101, but in the instant case the clear import of the foregoing testimony is that there was no general practice to road test a customer's vehicle......
1 cases
  • Universal Underwriters Ins. Co. v. State Auto. and Cas. Underwriters, No. 10340
    • United States
    • Supreme Court of Arizona
    • 2 Febrero 1972
    ...40, 369 P.2d 777 (1962); Wise v. Reeve Electronics, Inc., 183 Cal.App.2d 4, 6 Cal.Rptr. 587 (1960); Cross v. Fletcher, (Mo.App., 1948), 216 S.W.2d 101, but in the instant case the clear import of the foregoing testimony is that there was no general practice to road test a customer's vehicle......

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