Edmonds v. Stratton

• Decision Date: 23 July 1970
• Docket Number: No. 8993,8993
• Citation: 457 S.W.2d 228
• Parties: Woody EDMONDS and Robert Stiger, Plaintiff-Respondents, v. James W. STRATTON and Margaret Janet Stratton, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 228

457 S.W.2d 228

Woody EDMONDS and Robert Stiger, Plaintiff-Respondents, v. James W. STRATTON and Margaret Janet Stratton, Defendants-Appellants.

No. 8993.

Springfield Court of Appeals, Missouri.

July 23, 1970.

George Henry, Ruyle & Henry, Neosho, James L. Paul, Pineville, for plaintiffs-respondents.

R. J. Gordon, Yocom & Gordon, Pineville, for defendant-appellants.

TITUS, Presiding Judge.

Plaintiffs are partners engaged in the bulldozing business and defendants, husband and wife, are owners of the realty where plaintiffs undertook to ply their trade. Part of plaintiffs' services were performed on an hourly basis and part were rendered under a $1200 lump-sum oral contract. Defendants have appealed from the judgment entered in this court-tried case which awarded plaintiffs $1587 on their petition and defendants $563.10 on their counterclaim. After off-setting the awards, a net judgment was entered for plaintiffs in the sum of $1023.90. The lone point made by defendants on appeal is that the trial court 'erred by applying an improper measure of damages, that is, by allowing (plaintiffs) to recover on the contract and also allowing (defendants) to recover on the oral contract; the correct measure of damages should have been the loss of the bargain and applied in favor of (defendants).' Three cases dealing with total failure of performance are cited to this point, namely, Norman v. Vandenberg, 157 Mo.App., 488, 138 S.W. 47; Simons v. Wittmann, 113 Mo.App. 357, 88 S.W. 791; Samuels v. Illinois Fire Insurance Company, Mo.App., 354 S.W.2d 352. The $1587 gross judgment for plaintiffs included $387 found to be due them for services performed on an hourly basis. Since defendants, as evidenced by their appeal assignment, do not complain of that portion of the judgment, we will disregard the dispute involving hourly work and proceed as if the contract work was the only matter involved and the gross award to plaintiffs had been $1200.

Oral arguments by both parties are encouraged by appellate courts because they often assist the court to a fuller understanding of the theories of the parties and the issues on appeal. Quinn v. St. Louis Public Service Company, Mo., 318 S.W.2d 316, 319(2); Johnson v. Fogertey Bldg. Co., Mo.App., 194 S.W.2d 924, 931(8). In this cause the parties elected to submit the appeal on their written briefs without oral argument, thereby foregoing the opportunity to clarify many matters, as we will see anon, which their pleadings, evidence and briefs have managed to pollute with doubt and uncertainty. Our burden is further augmented by the fact that no request was made of the trial court for a statement of the grounds of its decision and that none was made which specifically accounts for the judgment rendered. Civil Rule 73.01(b), V.A.M.R.; § 510.310, V.A.M.S. Nevertheless, in such a situation the judgment is to be affirmed if it can be sustained upon any reasonable theory. Hiatt v. Hiatt, Mo., 168 S.W.2d 1087, 1089(4); Morris v. Western Casualty and Surety Company, Mo.App., 421 S.W.2d 19, 21(1).

This case started as a suit on 'a stated account.' Defendants' answer denied the account and convoyed a counterclaim which alleged that pursuant to the oral contract plaintiffs had agreed to bulldoze 15 acres of defendants' land in accordance with certain specifications for $1200. The counterclaim also averred that while plaintiffs had partly accomplished the 'bulldozing agreed,' the work did not conform to the contract and 'was done in an unskillful and unworkmanlike manner,' all to defendants' damages in the sum of $1973.10. Plaintiffs' reply admitted the contract but generally denied the balance of defendants' pleading. Thereafter, plaintiffs filed an amended petition wherein they adopted the oral contract 'as outlined in defendants counterclaim.' Because of the construction of the amended petition and its commingling of averments anent the contract work and that performed on an hourly basis 'at the agreed price of $14.00 per hour,' which was also said to be 'the reasonable value of the work performed' by the plaintiffs, we are uncertain whether plaintiffs were declaring on the agreement to recover the contract price, in quantum meruit to recover the reasonable value of their services, or alternately (Civil Rules 55.06 and 55.12, V.A.M.R.; §§ 509.050 and 509.110, V.A.M.S.) on both the contract and in quantum meruit. It is to be noted, however, that although a plaintiff may not ordinarily declare upon an express contract and recover on some other agreement (Robson v. United Pacific Insurance Company, Mo., 391 S.W.2d 855, 860(1)), a plaintiff may join a count on an express contract with one based on quantum meruit without being compelled to elect between them (Lee-Schermen Realty Co. v. Rueffel, Mo.App., 176 S.W.2d 655, 657(8)) and '(i)f 'if is impossible to say with definiteness whether the plaintiff is counting upon an express contract or upon quantum meruit, he will be permitted to recover upon whichever of the two theories his evidence may warrant.' In re Hukreda's Estate (Mo.Sup.) 172 S.W.2d 824, 826.' Johnson v. Estate of Girvin, Mo. (banc), 414 S.W.2d 245, 248(1). To add to the confusion, the petition contained the assertion that 'plaintiffs did all the work covered in said oral contract' and also the contradictory allegation that plaintiffs 'were ordered to quit work by defendants' ere plaintiffs' undertakings were completed. Plaintiffs prayed for $1200 on the contract work.

Defendants' answer denied the material allegations of the amended petition, affirmatively pleaded and prayed for damages in the amount of $1973.10, reaffirmed the counterclaim, denied that plaintiffs had been discharged, and alleged 'that plaintiffs walked off the job and removed their equipment' before their task was finished. On the day of the trial defendants amended their answer and counterclaim 'by reducing amount claimed to $563.10.' Albeit was not done intentionally, it would seem that by generally denying plaintiffs' petition and by pleading their damages affirmatively both by answer and counterclaim, defendants simultaneously pursued divergent courses. Under the general denial, defendants were entitled to establish, if they could, that the value of plaintiffs' services was less than plaintiffs claimed. Service Construction Company v. Nichols, Mo.App., 378 S.W.2d 283, 289(10). The same evidence would likewise go to establish defendants' counterclaim and what may be generally described as their affirmative defense of recoupment or set-off as averred in their answer. See Standard Insulation and Window Co. v. Dorrell, Mo.App., 309 S.W.2d 701, 704(3--6). The former remedy of set-off (a term loosely and confusingly used) and a defendant's common law right to recoupment have lost considerable identity in modern practice and are included within the remedy of a counterclaim. Freeman Contracting Company v. Lefferdink, Mo.App., 419 S.W.2d 266, 275; Thayer-Moore Brokerage Co. v. Campbell, 164 Mo.App. 8, 17, 147 S.W. 545, 549; Historical Note under § 509.420, V.A.M.S. These three remedies have a quality of similarity, yet possess sharp differences. The old statutory set-off had to be founded on a liguidated debt, which distinguished it from a counterclaim (Brandtjen & Kluge v. Hunter, 235 Mo.App. 909, 919--920(5--7), 145 S.W.2d 1009, 1014(5--7)) and, very generally speaking, the garden variety of set-off is defined as a remedy employed by a defendant to discharge or reduce the plaintiff's demand by an opposite one arising from a transaction which is extrinsic to the plaintiff's cause of action. 47 Am.Jur., Setoff and Counterclaim, § 3, p. 709; 80 C.J.S. Set-Off and Counterclaim § 3, pp. 7--9. The judgment on a set-off (provided the set-off is established as being greater than plaintiff's demand) may exceed plaintiff's claim and in such a case, just as it would be if it were a counterclaim, the defendant would have judgment for the difference and plaintiff's cause would fail. By the defense of recoupment, defendant seeks to cut down plaintiff's claim upon proof of defective performance. Recoupment goes to mitigation or extinguishment of plaintiff's damages but permits of no affirmative judgment for the defendant (Tile-Craft Products Co. v. Colonial Properties, Inc., Mo., 449 S.W.2d 653, 655--656(1); State v. Weatherby, 344 Mo. 848, 859, 129 S.W.2d 887, 893(11)) as is permitted if defendant elects to set up his own damages by way of a counterclaim. Talbot-Quevereaux Const. Co. v. Tandy, Mo.App., 260 S.W.2d 314, 316. We can eliminate defendants' claim (either by answer or counterclaim) as constituting a technical set-off or a statutory type of set-off because it was neither extrinsic to plaintiffs' cause of action nor predicated upon a liquidated debt. If the claim was an attempt at recoupment, the possibility of a double recovery on this theory under the answer and the counterclaim was thwarted by the court in awarding plaintiffs all they had asked in their petition. When the defendants reduced their counterclaim demand from $1973.10 to $563.10 they foreclosed the possibility of receiving a judgment in excess of plaintiffs' claim, unless it was established that plaintiffs had wholly failed to perform the contract or that plaintiffs' services had no value whatsoever. While it seems reasonably clear...