Elks Investment Co. v. Jones

Decision Date02 June 1916
Docket NumberNo. 17370.,17370.
Citation187 S.W. 71
PartiesELKS INVESTMENT CO. v. JONES et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Barry County; Carr McNatt, Judge.

Action by the Elks Investment Company against L. B. Jones and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

This is a suit by the owner upon a bond to secure the performance of a contract dated August 11, 1909, for the construction of a clubhouse for the plaintiff. The defendants are L. B. Jones and W. A. Bridges, the contractors and principals in the bond, and J. U. Vermillion, Leroy Jeffries, and W. C. Hathaway, their sureties in the bond. The petition was filed February 13, 1911, and states the execution of the contract to construct the clubhouse in Monett, Mo., furnishing at their own cost and expense the material therefor and doing all the work required by the plans and specifications, and to complete the building in accordance therewith by the 11th of December, 1909; if the completion was unreasonably delayed the damages therefor were to be deducted from the contract price, which was fixed at $9,300. That the bond sued on, which was attached to the contract and signed by all the defendants as such principals and sureties, was for $4,650, and "conditioned that in the event that said L. B. Jones and W. A. Bridges should well and truly perform said foregoing contract and should build and erect said clubhouse in every particular according to said contract and plans and specifications and should hold plaintiff, Elks Investment Company, harmless from all damages, actions, or causes of actions by reason of any and all materialmen or mechanic's liens, then said obligations should be void"; that plaintiff had fully complied with the contract on his part, but that the contractor had failed, neglected, and refused to complete the building according to the plans and specifications by the 11th day of December, 1909, and that plaintiff had been deprived of its use and occupancy up to ____ day of February, 1911, to plaintiff's damage in the sum of $1,000.

It also alleged as a breach of the bond: That the defendants had failed to hold the plaintiff harmless from liens for material and labor on account of which judgments had been obtained against the building as follows:

"M. L. Coleman Lumber Company, materialman for lumber in the sum of $3,872.22; Davis & Chappell Hardware Co., for material in the sum of $253.95; George W. Baldridge, for material and labor in the sum of $926; C. L. Williams, for material and labor in the sum of $719.24; Fred Reinsmith, for labor and material in the sum of 264.52; J. H. Otterman, for material in the sum of $133.90; D. J. Randolph, for labor in the sum of $173.85; W. H. Floreth, for material in the sum of $45.90. That the above-mentioned judgments were by said court adjudged against said building and premises of plaintiff as will more fully appear by the records of said court, to plaintiff's damage in the total sum of $6,389.64."

That plaintiff was compelled to pay attorneys' fees in said suits amounting to $50, all of which plaintiff had been forced to and did pay to save the building from sale.

The petition proceeded as follows:

"Plaintiff states that for another breach of said bond the said defendants L. B. Jones and W. A. Bridges have failed, neglected, and refused to complete said building according to said contract and plans and specifications in this, to wit: To fix and clean and oil the hearth of the mantel on the first floor; place and fit floor plates around the risers and fit and place floor moulds to the plates; repaint plastering in basement; give smoke pipe a coat of graphite, or black paint; close up bottom of flue to toilet room; replace broken stair window on the first landing to second floor, and nail fourth tread from said landing; level up upper landing to nosing; decorate auditorium so that it would be of same color, and to clean off the floor and finish dressing and sand paper same; paint galvanized ridging, provide sash lock for balconies, and box head windows; fix floor where hole has been cut in same for risers in auditorium under radiator; to place transom on second story where it was dropped; repair porch where chimney passes through roof; make ladder to scuttle on second floor; and to furnish plaintiff with written guaranty of heating apparatus — all to plaintiff's further damage in the sum of $200.

"Plaintiff further states that it has paid to the defendants on said contract price as aforesaid the sum of $5,485, and that after allowing said defendants Jones & Bridges for all work and labor performed on said building, plaintiff would be indebted to said defendants, had the building been all completed according to said contract, the sum of $3,975.50, which said amount has been by plaintiff fully paid out by it to the abovenamed materialmen and mechanics pro rata, together with the additional sum of $2,415.15, which plaintiffs were forced to pay in settlement of the total sum of $6,389.64 aforesaid, the established liens against said property, in order to prevent said materialmen and mechanics aforesaid from selling said property aforesaid under execution judgments aforesaid."

Judgment was asked for the penalty and damages to be assessed at $3,665.14.

Jones & Bridges answered separately that the contract provided that the plaintiff should pay 75 per cent. of the cost of all labor and material in the building as the work progressed upon estimates to be furnished by the superintendent of the building, which payments it failed and refused to make; that it also provided that defendants should complete the building by December 11, 1909, unless prevented by conditions and circumstances over which the parties had no control; that the material ordered could not be obtained; that plaintiff failed to clear the lot on which the building was to be erected for some months after the date of the contract by which the contractors were without their fault and by fault of plaintiff prevented from constructing and completing the said building until February, 1911; and that plaintiff is not entitled to recover on account of the mechanics' liens for the reason that said liens were caused by the failure of plaintiff to pay for the labor and material in the course of construction of said building as provided in the contract.

The sureties filed an amended answer charging that the contract provided that the plaintiff should not make any alteration or changes in the plans and specifications except in manner and form stated in the answer, and that plaintiff should pay 75 per cent. of the cost of labor and material based on estimates made by the superintendent, and proceeded as follows:

"Defendants say that plaintiff, in violation of its said contract, made various changes, alterations, and departures from the plans and specifications for the erection of said building without the knowledge or consent of these defendants, as follows: The foundation of said building was raised 18 inches above grade line, causing the use of about 600 cubic feet of stone more than was required by the original contract, and added 90 square feet of lattice work; two concrete steps at front entrance of building, 12 feet long, and two wooden steps at south entrance of building, 6 feet long, all of said steps being 12 inches wide; about 300 square yards of walls of basement of said building were white-coated and three 2×12×26 double joints were placed over partitions; 172 feet of lumber was put in as truss work in wall under plate and over partitions and sliding doors, and a wooden beam and iron ring were placed over attic scuttle; an extra alabastine coat was placed on inner walls and ceiling of entire story of said building; 90 square feet of painting on lattice work two coats; extra switch box and switch behind the rolling partitions, and resetting of partitions on the south side of stage which required material alterations in original rolling partition and caused contractors to have to send to factory and have rolling partitions shortened; changing sewer pipe after same had been laid and covered as provided in original plans by having it taken up, lowered, and extended 20 feet north under building, and on to a manhole; placing two iron beams and rings in ceiling of lodge room, removing and resetting one of said rings and beams to another point in said ceiling; changing pine flooring in said lodge room to clear maple, about 3,000 feet, scraping and sand papering same; two extra switches in the wiring of said building; painting of the interior woodwork throughout the entire building, changed from a stain to hard oil finish.

"Defendants state that after the execution of said bond and contract, plaintiff and said contractors, Jones & Bridges, by their certain instrument in writing, agreed to and did adopt the following changes in the plans of erecting said building, to wit: Area coping changed from Carthage stone to cement; I-beams in billiard room to be left exposed, omitting the wire, lath, and plastering on same; the gas pipe columns in basement changed to 8 by 8 surfaced; the fire escape changed to ladder fire escape in place of stairs, as shown on drawings; the outside finish changed from white pine to Louisiana cypress; omit lining of sliding door pockets; all sash to be 1 3/8 inches thick, instead of 1¾ as specified; omit dipping and staining of shingles; the interior of exterior walls of basement to have the furring and lath and plaster omitted and given a half coat of Portland cement, the same as specified for the top of cement floor — this to extend from floor to ceiling and where plastering is specified only.

"That said changes and alterations in the plans of said building, last mentioned, were material variations from the original contract price of said building, and plaintiff and said contractor did not agree in writing upon the amount of increase or deduction from the...

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    ... ... Constitution, it brought with it the common law which it had adopted as a territory in 1816.' Elks Investment Co. v. Jones, 187 S.W. 71, 74 (Mo.1916). 'The statute by which we adopted the common ... ...
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