Curators of University of Missouri ex rel. Shell-Con, Inc. v. Nebraska Prestressed Concrete Co., SHELL-CO

• Decision Date: 05 August 1975
• Docket Number: INC,No. 35185,SHELL-CO,35185
• Parties: The CURATORS OF the UNIVERSITY OF MISSOURI ex rel., a corporation, Plaintiffs-Respondents, v. NEBRASKA PRESTRESSED CONCRETE COMPANY, a corporation, et al., Defendants-Appellants. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 903

526 S.W.2d 903 The CURATORS OF the UNIVERSITY OF MISSOURI ex rel.
SHELL-CON, INC., a corporation, Plaintiffs-Respondents,
v.
NEBRASKA PRESTRESSED CONCRETE COMPANY, a corporation, et
al., Defendants-Appellants. No. 35185. Missouri Court of Appeals, St. Louis District, Division Three. Aug. 5, 1975.

Page 906

Anderson, Gilbert, Wolfort, Allen & Bierman, Stuart M. Haw, Jr., St. Louis, for defendants-appellants.

Deeba, DeStefano, Sauter & Herd, James B. Herd, Madigan, Hadican & Maloney, St. Louis, Paskel, Edwards, Olian & Hadican, J. Martin Hadican, Clayton, for plaintiffs-respondents.

GUNN, Judge.

We consider here an action in quantum meruit brought by the relator-respondent Shell-Con, Inc. (Shell-Con) for work performed in constructing the Warren E. Hearnes Multi-Purpose Fieldhouse at the University of Missouri-Columbia. Suit was brought on two alternative counts, one based on the contract Shell-Con entered into with defendant-appellant Nebraska Prestressed Concrete Co. (Nebraska Prestressed), and the other in quantum meruit. Shell-Con elected to proceed at trial on only the quantum meruit theory, seeking damages of $100,000 plus interest. Joined as defendants were Alfred Lindgren, Inc., the general contractor of the entire project, in its capacity as principal on a performance bond, and Pennsylvania Insurance Co. in its capacity as surety. The jury returned a verdict for Shell-Con for $87,000 plus costs, which was remitted to $67,000 by the trial court. Nebraska Prestressed has appealed from the judgment against it.

Nebraska Prestressed raises several points on appeal. It claims that the verdict, even remitted by $20,000, was grossly excessive and unsupported by the evidence. It also asserts that the trial court erred in giving several instructions to the jury and in failing to give others offered by the defendant.

The ultimate act giving rise to this controversy occurred when the president of Shell-Con ordered his crew to leave the construction site after having completed approximately 80 to 85 percent of the work contracted. Shell-Con then brought suit alleging that Nebraska Prestressed had breached its contract by preventing Shell-Con from completing performance. Nebraska Prestressed answered by denying that it breached the contract and asserted as an affirmative defense that Shell-Con, by voluntarily abandoning the contract, had committed the breach.

The basic facts involved in this controversy are not in conflict. In January 1969, defendant Alfred Lindgren, Inc. entered into a contract with the Curators of the University of Missouri for the construction of the Warren E. Hearnes Multi-Purpose Fieldhouse to be situated on the University's Columbia campus. Subsequently, Alfred Lindgren, Inc. contracted with defendant Nebraska Prestressed for the manufacture and installation of precast concrete exterior wall units and seat units. On February 26, 1969, Nebraska Prestressed subcontracted the installation work to the plaintiff Shell-Con. It is the contract between Shell-Con and Nebraska Prestressed on which this litigation centers. Under the terms of the contract, Nebraska Prestressed agreed to manufacture the precast concrete units and deliver them to the job site. Shell-Con agreed to unload the units and set them into place. The contract price for the completed work was $167,000.

During negotiations with Nebraska Prestressed, Shell-Con insisted that conditions at the work site be in a proper state of readiness so that Shell-Con would be able to proceed with its work in a continuous and sequential fashion. Shell-Con had projected that its work would be completed within four to six months; that if Shell-Con were unable to proceed in a sequential order around the structure, it would be forced to move its equipment, including a large crane, from one work area to a noncontiguous area, which would be a time consuming and costly procedure. Several provisions were incorporated into the contract to avoid these problems, including the following requirements: 1) that suitable access to work

Page 907

ares for equipment and material trucks be provided; 2) that all materials furnished by others be delivered by truck to the point of erection; and 3) that delivery of materials be scheduled and coordinated to ensure and maintain continuous and sequential operation.

The saga of Shell-Con's performance is replete with false starts and continual delays without fault on the part of Shell-Con. Although Shell-Con was scheduled to begin the erection work in August, 1969, it was not ordered onto the job until September 15, 1969. Several days prior to September 15, Shell-Con notified Nebraska Prestressed that an inspection revealed that the structure would not be ready to receive the wall panels until October. Despite the warning, the general contractor told Nebraska Prestressed to order Shell-Con onto the job. The structure was not ready and Shell-Con was not able to commence its work. It was forced at substantial expense to dismantle and remove the large crane it had readied for the work. It was not until October, 1969 that Shell-Con actually began to install the wall panels. The crew was forced to stop working on December 19, 1969 because the structure again was not ready to receive the precast concrete panels. Shell-Con resumed work in January and remained at the job site until July 24, 1970 at which time Mr. Shell, president of Shell-Con, ordered his men to leave the construction site. Throughout the various intervals that Shell-Con worked, the crew experienced continual problems with the steel structure being out of plumb. There were also problems with the poured-in-place concrete not being properly laid. These difficulties created continual delays and forced Shell-Con to work out of sequence. In addition to the problems with the structure and the poured-in-place concrete, there were access problems relating to the installation of the seats. According to the contract, the seats were to be installed from inside the fieldhouse. Shell-Con was unable to move its crane inside the structure because the interior was cluttered with scaffolding being used by steelworkers. There was testimony that it would take approximately 20 working days to sufficiently clear away the scaffolding to allow access for Shell-Con's crane. The breaking point, causing Shell-Con to cease work completely on July 24, was an access problem caused by an accumulation of dirt that interfered with the placement of Shell-Con's crane. Mr. Shell was also disturbed that he had not been paid for the last two months' work and for extras that had been billed to Nebraska Prestressed for work performed but not covered by the contract. A further reason given for leaving the job was Shell-Con's unwillingness to bear the burdens of continual delays. Shell-Con also believed that it could no longer rely on Nebraska Prestressed's assurances that the work would be able to continue in a sequential fashion. It is important to note that after Shell-Con stopped working, Nebraska Prestressed undertook the construction proejct, and the erection of the wall panels and seats was finally completed in late December, 1970, over a year after the work was begun.

The first point raised on appeal by Nebraska Prestressed is a claim that the jury verdict of $87,000, even remitted by the trial court to $67,000, was excessive and not supported by the evidence. Quantum meruit is defined as 'as much as he has deserved.' Rolla Lumber Co. v. Evans, 482 S.W.2d 519, 521 (Mo.App.1972); Rodgers v. Levy, 199 S.W.2d 79...