Dockery v. Mannisi, 43468

• Decision Date: 15 June 1982
• Docket Number: No. 43468,43468
• Citation: 636 S.W.2d 372
• Parties: Gerald DOCKERY et ux., Plaintiffs-Respondents, v. Anthony MANNISI and Lee McGraw, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 372

636 S.W.2d 372

Gerald DOCKERY et ux., Plaintiffs-Respondents, v. Anthony MANNISI and Lee McGraw, Defendants-Appellants.

No. 43468.

Missouri Court of Appeals, Eastern District, Division One.

June 15, 1982.

Francis L. Kenney, III, Clayton, for defendants-appellants.

Robert L. Brown, Arnold, for plaintiffs-respondents.

KELLY, Chief Judge.

This is an appeal from a judgment of the Circuit Court of the County of Jefferson in a suit instituted in the Associate Circuit Court of said County by Gerald and Mary Ellen Dockery, hereinafter "respondents," against Anthony Mannisi and Lee McGraw, hereinafter "appellants," for damages in the amount of $5,000.00 plus costs, because appellants constructed a home for the Dockerys in "an improper manner ..." or "breach of imply (sic) warranty (sic) inhabitability and quality ..." The appellants filed an Answer and a counter-claim for $285.31 plus interest and costs for goods provided the respondents over and above the contract price agreed upon by the parties for the construction of the house which is the subject of this action. The respondents requested a jury trial and, pursuant to §§ 517.630 and 517.520.2 RSMo.1978, the cause was certified to the presiding judge of the Circuit Court who thereafter assigned the cause to an Associate Circuit Judge for trial.

Following the jury trial a verdict was rendered for the respondents on their cause of action for $4000.00 and for Anthony Mannisi on his counter-claim for $250.00. A judgment was entered for respondents in the sum of $3750.00 plus costs, with interest from the date of judgment, June 30, 1980. This appeal followed.

The facts, viewed most favorably in support of the verdict of the jury, are that on or about September 23, 1977, the appellants conveyed a parcel of land located in Jefferson County, Missouri, by General Warranty Deed to the respondents. Prior thereto, on or about May 3, 1977, the appellants entered into a "Sales Contract" to erect a house on the same parcel they subsequently conveyed to the respondents in September, and according to this contract the house was to be completed in a "workmanlike manner."

When the "Sales Contract" was entered into the foundation of the house was already in place. Construction of the house proceeded. Closing on the house was initially scheduled for August 15, 1977, but when that date arrived and the house was not completed, the closing was postponed. Sometime in September, 1977, Mr. Dockery and Mr. Mannisi had some conversations during which Mr. Mannisi told Mr. Dockery that he could not guarantee the basement of the house because it had a "couple of cracks." Mr. Dockery advised Mr. Mannisi that he and his wife would, nevertheless, take the house if Mr. Mannisi would put drain tiles around the footing of the house and if Mr. Mannisi would sign a paper stating that he would install the drain tiles and come back after the closing and install storm windows which, although they had been ordered and were en route, had not yet arrived.

On September 26, 1977, Mr. Mannisi signed an agreement before a Notary Public wherein he agreed to "furnish and install drain tiles and storm windows" on the property "on or before October 14, 1977," contingent, however, upon receipt of $285.31 from the respondents for carpeting.

The plaintiffs occupied the house on October 1, 1977, and closed on October 3, 1977.

When they occupied the house the Dockerys encountered several defects which formed the basis of their claim. The drain tile and storm windows had not been installed, the kitchen window was cracked and did not fit properly, the electrical outlet covers were of the wrong size, the front door was warped and would not close properly, and there were plumbing leaks. In addition, the respondents found nail heads sticking up from the kitchen linoleum which was cut too short and did not meet the wall. The basement windows were sealed shut and there were some problems with wiring and joint-taping. Mr. Dockery testified that for the first three weeks of occupancy the hot water heater was virtually useless because the heating element was burned out. There was also a hole in the foundation where the water line entered the house which permitted water to leak into the basement of the home. Appellants remedied some of these problems for the respondents and the manufacturer of the hot water heater took care of the problem with that appliance. Respondents incurred out-of-pocket expenses of approximately $830.00 and Mr. Dockery alleged that he labored "many hours" fixing the electrical outlets and some 200 hours mopping up the water that had leaked into the basement. Appellant also maintained that the water leakage in the basement had caused rust damage to the furnace and that the sanitary sewer system was defective causing raw sewage to back into the basement when it rained.

According to the respondents the sales price of the property was $28,900.00. Mr. Dockery testified that the fair market value as of October 3, 1977, when the closing took place, was $23,000.00.

Appellants present six Points Relied On as grounds for a new trial. One ground is that the trial court erred in failing to grant their motion for a directed verdict at the close of plaintiffs' case. Having proceeded to offer evidence after their motion for directed verdict at the close of plaintiffs' evidence had been overruled, they waived their right to complain of the trial court's action in that regard. Alexander v. Estate of Groves, 618 S.W.2d 233, 236(3) (Mo.App.1981); see cases digested under Mo.Dig. Trial § 420.

A second ground expounded by appellants for reversal of the judgment is that the trial court erred in admitting into evidence respondents' Exhibit # 6-a sales contract-because there was no foundation laid nor a showing that it was the best evidence of the contract.

At trial respondent identified one document-"Exhibit No. 6"-a "carbon copy" of the sales contract for the house entered into with the appellants and a second document-a General Warranty Deed for the house and parcel of land on which it was constructed-that he and his wife purchased under the sales contract. This came in without objection. When, however, respondents sought to introduce the sales contract into evidence appellants objected on the ground that the document did not bear the signature of the sellers, that the best evidence would be the original of the document and no foundation had been laid to establish that the original wasn't available or where it was. Mr. Dockery then testified that he didn't know where the original was and the trial court received the exhibit into evidence "subject to further proving up."

It was then developed that the Dockerys signed the sales contract at the office of a real estate agency before they ever saw the appellants and at that time received a copy of the sales contract which the defendants had not, up to that time at least, executed.

It is an elementary principle of the law of evidence that the best evidence of which the case in its nature is susceptible and which is within the power of the party to produce, or is capable of being produced, must always be produced in proof of every disputed fact. The best proof of a writing is the writing itself. The mere fact that one's adversary is in possession of a writing containing the facts relevant to the issues in the case does not warrant the introduction of secondary evidence of its contents.

However, where a carbon copy is concerned, the rule is that carbon copies have the status of duplicate originals and hence are not within the scope of the best evidence rule. A carbon copy may be introduced into evidence without explanation of the non-production of the first, or "ribbon" copy, where signed by the parties or otherwise properly identified over an objection that it is not the best evidence. Land Clearance for Redevelopment Authority v. Zitko, 386 S.W.2d 69, 80(2) (Mo. banc 1964). The Sales Contract, Exhibit # 6, does not satisfy the "carbon copy" rule because it was not signed by the parties to the alleged contract. The trial court admitted the exhibit, as heretofore stated, "subject to further proving up."

Any error committed in receiving into evidence this copy of the Sales Contract was subsequently cured when, during cross-examination of Mr. Mannisi in the defendants' case, his trial counsel furnished respondents' trial counsel a document which Mr. Mannisi testified was the contract under the terms of which he built the house which is the subject of this litigation. He also identified a signature on the contract as a carbon copy of the signature of "Lee"-his co-defendant. This contract was marked as plaintiffs' Exhibit # 11 and received into evidence.

Exhibits 6 and 11 are carbon copies of a Sales Contract dated May 31, 1977, signed by the Dockerys, as purchasers of the plot of ground and providing for the construction of a "new 3 bedroom total electric home with family room." for $28,900.00. Each of the exhibits contains the statement "House to be completed in workmanlike manner." Handwritten on Exhibit No. 11 is "Seller to net $26,500." This notation does not appear on Exhibit # 6. The only other difference in the two is a statement with reference to carpet colors-" contractor to furnish samples" on Exhibit # 11.

Appellants argue that respondents never properly proved up the contract because respondents' Exhibit 6 was a copy signed by the Dockerys alone, does not indicate who the other parties are and nowhere in the transcript is there any testimony concerning execution of the document by any of the parties. However, Mr. Dockery testified concerning how their signatures were written on the contract and Mr. Mannisi identified Ms. McGraw's signature on Exhibit # 11 and admitted that it was the contract under the terms of which he constructed the house for the Dockerys.

Under these circumstances, the failure of respondents to comply with the niceties...