Elmore v. Cox
| Decision Date | 25 June 1928 |
| Docket Number | No. 16312.,16312. |
| Citation | 9 S.W.2d 681 |
| Parties | ELMORE v. COX et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Ben Terte, Judge.
Action by Hooker Elmore against Harley Cox, the National Kellastone Company, and another. From judgment for plaintiff, defendant last named appeals. Affirmed.
Lathrop, Crane, Reynolds, Sawyer & Mersereau, of Kansas City, for appellant.
Jacobs & Henderson and Thomas E. Deacy, all of Kansas City, for respondent.
Action for damages for breach of contract against Harley Cox, Del Cox, and National Kellastone Company, defendants. At the close of plaintiff's evidence, plaintiff voluntarily dismissed as to defendants Harley Cox and Del Cox. Plaintiff recovered judgment in the sum of $700, and defendant National Kellastone Company appealed.
The amended petition on which the case was tried alleges that defendant National Kellastone Company was a corporation, and defendant Harley Cox was its agent and salesman; that defendants Harley Cox and Del Cox were partners transacting business as Cox Bros., and were engaged in doing contract work in applying kellastone to buildings; that said Cox Bros. contracted and agreed with plaintiff to furnish material and complete a job of kellastone in a workmanlike manner on plaintiff's house; that the material for said work was furnished by defendant National Kellastone Company; that Cox Bros. guaranteed that said kellastone would stay on plaintiff's house for 20 years; but that the work of applying said kellastone to plaintiff's house was done in such an unworkmanlike manner that it cracked and fell off said house and is of no use or value to plaintiff.
The petition also alleges the following:
In our view of this case a detailed statement of the facts is necessary.
On June 7, 1921, plaintiff and Cox Bros. entered into a written contract by which Cox Bros. agreed to furnish all lath and kellastone and put same on plaintiff's house for $700. Defendant National Kellastone Company is not mentioned in this contract.
It is not disputed that Cox Bros. put the kellastone on plaintiff's house. Neither is it disputed that the kellastone cracked and bulged and a large part of it fell off of the house.
Plaintiff contends that she bought the kellastone from defendant National Kellastone Company, and that said company represented and guaranteed said kellastone to be of such quality that it would adhere to plaintiff's house when placed thereon, and that it contained the necessary ingredients to make it proper for stucco purposes. There is evidence in the record tending to show that National Kellastone Company did furnish the stucco to plaintiff. Harley Cox testified that he was in the employ of National Kellastone Company and was selling kellastone stucco; that his company informed him that plaintiff was interested in kellastone and directed him to go and see her. In response to a question as to what he said to her, Cox testified:
"Well, naturally I told her that I came to sell her—that I had this contract to sell kellastone stucco, and of course sold her kellastone; I went to talk kellastone to her."
Cox further testified that he showed plaintiff samples of kellastone and told her that it was suitable for the purpose of covering her house; that it would readily adhere to the walls; that he measured the house and gave her an idea as to how much material it would take for the job; that he sold her on the idea of using kellastone and she agreed to use it; that she agreed to use kellastone and it was up to him to get the material there, either direct, or sell it to the dealer in any place it was necessary to do that; we sold through dealers ordinarily; that he thought the kellastone was applied to the house in proper thickness and that it seemed to be a good job; that he reported to his company that he had sold the job; that he sold plaintiff just enough kellastone for the job; that the material was ordered out of St. Joseph and shipped by local freight. This witness also testified that he sold plaintiff on the idea only, but did not take her order for kellastone.
Plaintiff testified that witness Cox took her order and told her what the material would cost. Plaintiff also testified that Cox told her that National Kellastone Company would furnish the material through some agent. The president of defendant company testified that Cox was the representative of the company, but was only authorized to sell to dealers, and that his company did not sell any kellastone to plaintiff.
We think this evidence was sufficient to warrant the jury in finding that defendant company sold the kellastone to plaintiff.
Defendant's first contention is that plaintiff's petition does not state a cause of action against defendant National Kellastone Company, and for that reason the court erred in submitting the case to the jury.
The petition alleges that the stucco fell from the house "either as a result of the quality furnished by the National Kellastone Company, or by virtue of the application and the failure to properly mix according to specifications." If defendant company furnished plaintiff kellastone of an inferior quality, and as a result of such inferior quality it did not adhere to the house, defendant company would be liable to plaintiff for any damages she suffered on that account. On the other hand, if Cox Bros. improperly mixed the kellastone and put it on the house in an unworkmanlike manner, and by reason thereof the kellastone did not adhere to the house, defendant company would not be liable therefor. Thus we have the petition alleging two things in the alternative as a cause of plaintiff's damages, for one of which defendant company would be liable but not the other. For this reason the petition does not state a cause of action, and we would so hold if the petition had been properly attacked. Berry v. Peacock Coal & Development Co. (Mo. App.) 253 S. W. 456, 459; Rollins v. Business Men's Acc. Ass'n of America, 204 Mo. App. 679, 220 S. W. 1022.
However, defendant chose to file answer and go to trial without challenging the petition by demurrer or objection to the introduction of evidence thereunder. In this situation the question to be determined is whether or not the evidence is sufficient to support the judgment in plaintiff's favor. The petition alleges that the kellastone cracked and bulged and fell off the house, either on account of the inferior quality of the material furnished by defendant company, or on account of the improper mixing and application of the material by Cox Bros., the contractors who put the kellastone on the house. Defendant would be liable for the former, but not for the latter. If the evidence tends to show that the inferior material, and not the improper mixing and application of it, caused the damages, plaintiff made a prima facie case.
The evidence on the part of plaintiff tended to show that the kellastone was applied to the house in a workmanlike manner and in accordance with the specifications furnished therefor. If this be true, the reasonable inference to be drawn from this evidence would be that the inferior quality of the material used, a thing for which defendant would be liable, caused the kellastone to fall off of the house.
There was also evidence tending to show that the kellastone was caused to fall off of the house by reason of the fact that it was not properly put on. The specifications provided that the kellastone must be applied at least one-half inch thick. J. M. Broderick, who worked for defendant about eight years, testified that he knew what the specifications called for and knew something about the business; that he examined plaintiff's house and found that the kellastone on the house in many places was thinner than the specifications called for, and varied from one-fourth to one-half inch in thickness. He further testified that the kellastone cracked and bulged and fell off of the house because of the fact that it was not properly applied; that the stucco was soft and brittle and, under the circumstances, he would expect it to be.
It will thus be seen that the evidence shows that plaintiff's damage was caused by either of two things, for one of which the defendant is liable, but not the other. In other words, plaintiff's evidence tended to show that the inferior quality of the material caused the kellastone not to adhere to the walls of the house, while that of defendant tended to show it was...
To continue reading
Request your trial
-
Odom v. Langston
...res gestae. 22 C. J., 453-454. (19) After admission of testimony without objection, petition will be deemed amended accordingly. Elmer v. Cox, 9 S.W.2d 681; v. Ethridge, 262 S.W. 69; State ex rel. v. Gromer, 252 S.W. 705; Treece State Bank v. Wade, 283 S.W. 714. (20) Evidence received, thou......
-
Emerson v. Treadway
...949(4)], and the petition should be construed most favorably to plaintiff [Worley v. Worley, Mo.App. 176 S.W.2d 74, 77(4); Elmore v. Cox, Mo.App., 9 S.W.2d 681, 683(2)]. If the petition contains averments which, if proved, would entitle plaintiff to recover either on an express contract or ......
-
Franklin v. Local Finance Co.
... ... judgment of the circuit court should be affirmed because none ... of the alleged errors which appellant has assigned in its ... brief in this court were raised by it in its motion for a new ... trial. Mo. Gas & Electric Co. v. Rea & Page, 220 ... Mo.App. 1067, 279 S.W. 727; Elmore v. Cox, 9 S.W.2d ... 681; Stein v. Rainey, 315 Mo. 535, 286 S.W. 53; ... Koch v. Sanford, 220 Mo.App. 396, 286 S.W. 732; ... Killam v. Travelers, 127 S.W.2d 772; Gregory Bus ... Line v. Stephens, 223 Mo.App. 1036, 15 S.W.2d 910. (2) ... The judgment of the circuit court should be ... ...
-
Korn v. Ray
...against Model was responsive to the pleadings and the evidence, we need not consider waiver of this omission by Model. Elmore v. Cox, Mo.App., 9 S.W.2d 681. We have examined Johnson v. Underwood, 324 Mo. 578, 24 S.W.2d 133, and Wooten v. Friedberg, 355 Mo. 756, 198 S.W.2d 1, relied upon by ......