Dempsey v. Schawacker
| Decision Date | 17 July 1897 |
| Citation | 38 S.W. 954,140 Mo. 680 |
| Parties | Dempsey et al., Appellants, v. Schawacker |
| Court | Missouri Supreme Court |
Rehearing Granted 140 Mo. 680 at 691.
Appeal from St. Louis City Circuit Court. -- Hon. Leroy B. Valliant Judge.
Reversed and remanded.
H. A Loevy, C. G. B. Drummond and W. H. Phelps for appellants.
(1) Appellants are entitled to recover the reasonable value of the work contracted for on a quantum meruit, even if it exceeds the contract price. Kelly v. Rowane, 33 Mo.App. 443; Fitzgerald v. Hayward, 50 Mo. 524; McCullough v. Baker, 47 Mo. 40; Yeats v. Ballentine, 56 Mo. 538; Ahern v. Boyce, 19 Mo.App. 555; s. c., 26 Mo.App. 564. (2) If there was any waiver by the appellant it was conditional on the future performance by the respondent of his contract, and when the respondent afterward failed to perform the waiver, if any, was released, the condition on which it is presumed it was made having been broken. Fitzgerald v. Hayward, 50 Mo. 516; Park v. Kitchen, 1 Mo.App. 358; Weber v. Ins. Co., 5 Mo.App. 56; Stark v. Hurd, 41 N.Y.S. R. 779. (3) The finding that respondent paid $ 3,462.77 in satisfaction of the subcontractors' lien judgments is erroneous. Douglas v. Stephens, 18 Mo. 362; Picot v. Signaigo, 22 Mo. 587; Casey v. Gunn, 29 Mo.App. 14; Hoyt v. Greene, 33 Mo.App. 213; Railroad v. McGrew, 104 Mo. 291. (4) The referee's finding sustaining the eight pleas of res adjudicata is erroneous. Bigelow on Estoppel, pp. 80, 99; McMahan v. Geiger, 73 Mo. 149; Bank v. Bartle, 114 Mo. 281; Union Co. v. Traube, 59 Mo. 362; Ridgley v. Stillwell, 27 Mo. 132; Dickey v. Heim, 48 Mo.App. 119; Taylor v. Larkin, 12 Mo. 103. (5) The refusal by the referee to allow appellants interest on amount he found due them is erroneous. Compton v. Johnson, 19 Mo.App. 94; Southgate v. Railroad, 61 Mo. 95; Phillips v. Laclede Co., 76 Mo. 70; Bain v. Clark, 39 Mo. 256. (6) Where work is done under a special contract, and suit is brought thereon, the party suing can not recover unless he shows strict compliance with the contract. Halpin v. Manny, 33 Mo.App. 388; Eyerman v. Cemetery Ass'n, 61 Mo. 489; Davis v. Brown, 67 Mo. 314. (7) Where the evidence as to certain facts is uncontradicted, the referee is bound to find that fact according to the evidence.
W. B. Thompson for respondent.
(1) All issues of fact have been settled by the findings of the referee, confirmed by the action of the circuit court, and this court will not interfere with these findings. Woodrow v. Younger, 61 Mo. 395; Smith v. Crews, 2 Mo.App. 269; Bank v. Tamblyn, 7 Mo.App. 571; Roemmich v. Wamsganz, 8 Mo.App. 576; Wiggins Ferry Co. v. Railroad, 73 Mo. 389. (2) In the review of the finding of a referee in an action at law, this court is limited to the inquiries, whether the referee's findings of fact are sustained by substantial evidence and whether the conclusions of law applied by him to these findings are correct. Western Brass Mfg. Co. v. Mepham, 64 Mo.App. 50; Lingenfelder v. Brewing Co., 103 Mo. 578; Vogt v. Butler, 105 Mo. 479. (3) There was no error in the referee allowing the judgments, interest and costs thereon, paid by respondent, because such judgments were res adjudicata, and as to all of the questions involved the appellants were concluded by the litigation wherein they actually participated, and it was their duty to protect the respondent, who had been notified of these suits. McCorkle v. Miller, 64 Mo.App. 158; Hoyt v. Greene, 33 Mo.App. 205; McFall v. Dempsey, 43 Mo.App. 369; Young v. Byrd, 124 Mo. 597. (4) The claim that interest was not allowed appellants in this case can not be sustained. The only interest that was allowed in the case was the interest upon the judgments that had been paid and satisfied by respondent and which bore interest under the law of the State.
OPINION
This is an action on a quantum meruit for work done and materials furnished in the construction by plaintiffs for defendant, of a livery stable in the city of St. Louis, and for a mechanics' lien on the property for $ 2,748.12, the balance claimed to be due.
Defendant pleaded a special contract under which plaintiff undertook to furnish the material and construct the building in question for the sum of $ 8,369, and charges an abandonment of the work without cause before completion, and asked judgment for $ 3,267 as damages for breach of the contract. He also sets up a counterclaim for $ 3,267, the amount he charges he was required to pay above the contract price, to complete the building. He also pleads the payment of a number of mechanics' liens held by subcontractors and material men against plaintiffs as contractors, and the property of defendant.
Plaintiff by reply denies the voluntary abandonment of the contract, but charges that they were unable to perform it on account of the continued interference by defendant with the work and their employees, and on account of the failure and refusal of defendant to pay stipulated sums as they became due.
The case was sent to a referee who took the evidence and reported to the court his conclusions of law and fact. After carefully considering each controverted item in the accounts of the parties and passing upon them separately, the referee made the following summary of his conclusions:
RECAPITULATION.
Finding for plaintiff's work covered by contract
$ 9,285 80
For extra work
468 97
Total
$ 9,754 77
FINDINGS FOR DEFENDANTS.
By allowing them the contract price, plus extras, and charging them with payments made to them, to satisfy the subcontractors' judgments, and what it cost to finish the building, and attorney's fees in McLaughlin case, the true state of the account is arrived at as follows:
FINAL FINDINGS FOR PLAINTIFFS.
For work done under contract price
$ 8,369 00
For extra work
468 97
Total
$ 8,837 97
FINDINGS FOR DEFENDANTS.
Exceptions to the report, covering nearly every special finding of the referee, and controverting the conclusions reached, were filed by plaintiffs. These were considered by the court and overruled, the report was thereupon approved and judgment rendered in accordance therewith. Plaintiffs appeal.
I. Plaintiffs make serious complaint to the finding of the referee that they were not justified in abandoning the work from any interference, or other act or omission on the part of the defendant, yet they do not claim that the finding in that particular was not supported by substantial evidence. A large part of the brief of counsel is devoted to a consideration of questions of fact.
The report of the referee shows a very fair and thorough consideration of the case made, and all his conclusions of fact are well sustained by the evidence. The report, and the findings of fact clearly stated therein, were reviewed by the circuit court upon the most explicit exceptions thereto made by plaintiffs, and the report was approved and confirmed.
The conclusions of a referee on questions of fact in law cases, and the confirmation thereof by the circuit court, stand in the nature of special findings, and if supported by substantial evidence will not be reviewed on appeal. Franz v. Dietrick, 49 Mo. 95; Berthold v. O'Hara, 121 Mo. 88, 25 S.W. 845.
It is true the referee considered, separately, each act of alleged interference with the work on the part of defendant, and found it insufficient to authorize an abandonment, but did not expressly sum up their united effect, that is, whether all taken together were sufficient, yet we must assume, from the general conclusion that "plaintiffs were not justified in abandoning the work," that the entire evidence was considered.
II. The referee finds that certain changes in the order of the work and in the specifications were insisted upon and required by defendant but that plaintiffs, at the time, made no objection to the changes and did not quit work on account of them. Plaintiff insists that evidence of a waiver was not admissible under the pleadings.
The question under the pleading is whether plaintiff had good cause to abandon the work. The ground for the abandonment is stated in the reply of plaintiff, which is the last pleading required or allowed by the code. Defendant is therefore entitled to introduce any competent evidence in rebuttal of that offered in support of the reply. We think it was competent, therefore, for defendant to prove that plaintiff consented, at the time, to the interferences complained of as grounds for quitting the work.
But the referee expressly finds that plaintiff abandoned the work for the reason that defendant refused to make payments for certain amounts claimed at the time to be due. We must take this finding of fact as conclusive upon us.
III. The contract provides for the payment of installments as the work progressed. The first and second, consisting of $...
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