F. C. Preuitt Const. Co., Inc. v. Doty

• Citation: 536 S.W.2d 908
• Decision Date: 03 May 1976
• Docket Number: No. KCD,KCD
• Parties: F. C. PREUITT CONSTRUCTION CO., INC., Respondent, v. Roy DOTY and Charles Soetaert d/b/a Overland Excavating Company, Appellants. 27341.
• Court: Court of Appeal of Missouri (US)

Page 908

536 S.W.2d 908

F. C. PREUITT CONSTRUCTION CO., INC., Respondent, v. Roy DOTY and Charles Soetaert d/b/a Overland Excavating Company, Appellants.

No. KCD 27341.

Missouri Court of Appeals, Kansas City District.

May 3, 1976.

Charles A. Lewis, Connaughton & Lewis, Kansas City, for appellants.

Charles R. Svoboda, Kansas City, for respondent; Fred A. Murdock, Kansas City, of counsel, on brief.

Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.

SWOFFORD, Judge.

This is an action for damages based upon an alleged breach of an oral contract. The respondent (hereafter Preuitt) was the general contractor for the construction of an addition to the Ervin Junior High School, Raytown, Missouri, and the oral contract sued upon covered certain excavation, grading and other earth work to be done by the appellants (hereafter Overland) as subcontractor on said construction. Overland filed a counterclaim seeking the sum of $4,242.58 for work based upon quantum meruit which it was alleged had been done on the job but not paid by Preuitt. A jury was waived and the evidence was presented to the court below sitting as the trier of facts. That court made extensive findings of fact and conclusions of law, and entered judgment in favor of Preuitt in the amount of $4,757.67 on its petition, and denied Overland any recovery on the counterclaim. After an unsuccessful motion to amend judgment, Overland appealed to this court.

Overland raises two assignments of error. The first of these (in summary) is that the court erred in failing to sustain Overland's motion for directed verdict (sic) because: A) Overland's objection to and motion to strike the evidence of Preuitt as to Overland's specific contractual obligations, as a subcontractor, under the prime written construction contract between Preuitt and the school district, should have been sustained since such prime contract was not in evidence nor was any other substantive and admissible evidence offered by Preuitt to establish any obligation of Overland to perform such specific excavation services; and B) there was no proof that the charges paid by Preuitt to others to complete the originally required excavation work were reasonable, and thus there was a failure of proof as to monetary damages.

Overland's second assignment of error (in summary) is that the court erred in denying Overland recovery on the counterclaim based upon work done but not paid for; that quantum meruit was pleaded, proved and conceded, and Overland was entitled to a judgment for $4,242.58 on the counterclaim.

Since this is an appeal of a courttried case, the review is upon 'both the law and the evidence as in suits of an equitable nature'; due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses; and, the findings and judgment of the court below will not be disturbed if supported by substantial and credible evidence. Rule 73.01.

The transcript of evidence, record and exhibits entered below, and the authorities and legal arguments of counsel, have been carefully reviewed and independent legal research made. It is concluded that the judgment below be affirmed.

A summary of the facts necessary to the resolution of this appeal is as follows:

In 1965, Preuitt was a general contractor engaged primarily in the construction of commercial buildings and schools. It had constructed the original Ervin Junior High School in Raytown, Missouri and the first addition thereto, prior to 1965, as general contractor. In each of those jobs Overland had done the excavation and dirt work as a subcontractor at a fixed price, and not upon the basis of an hourly charge for machinery and equipment.

On February 4, 1965, Preuitt was the low bidder on a second addition to be constructed to the school and was awarded the general contract at a fixed price of approximately $1.5 million dollars.

Prior to submitting its bid on the second addition to Ervin school, Preuitt arrived at its bid by preparing a 'bid estimate sheet' which separated the various classifications of work to be performed on the job, some of which was to be performed by Preuitt and the remainder to be subcontracted by Preuitt to others. For the work to be performed by subcontractors, Preuitt requested them to submit to it their bids in accordance with the plans and specifications at a fixed price. Preuitt then used the low bid on each category to figure the overall total bid price to be submitted.

Knowing of Overland's familiarity with the job site, location and nature of the work, sometime prior to February 4, 1965 Preuitt requested Overland, by telephone, to bid on the site grading and excavation work on the Ervin second addition, according to the plans and specifications. On February 4, 1965, Overland advised Preuitt over the telephone that it bid $18,412.00 on a base bid, $987.00 for additional work covered in Alternate # 6, and $510.00 for additional work covered in Alternate # 7, a total bid of $19,909.00 for the dirt work. Mr. Preuitt testified that it was a custom and practice in this area to solicit and receive bids from subcontractors to use in figuring a general contractor's bid on the prime contract, by telephone. It has been Overland's position throughout that any work undertaken or done on this job was not a fixed price contract but rather upon an hourly charge.

Preuitt used the Overland figures and incorporated them in its bid. On February 4, 1965, when Preuitt was awarded the contract, Mr. Preuitt advised Overland over the telephone of this fact and that its bid for the dirt work was accepted. On February 16, 1965, Mr. Preuitt wrote Overland a letter, which his secretary testified was mailed to Overland that day. In pertinent part, this letter states:

'This is your authorization to proceed with items of dirt work on the Ervin Junior High School, as per your telephoned quotation of February 4, 1965, all according to plans and specifications prepared by Hollis & Miller, Architect.

The Board accepted alternates 6 and 7 which add to your base bid of $18,412.00, the sum of $1497.00 (alt. # 6 $987.00 & alt. #7 $510.00) making a contract price of $19,909.00 to you.

Have your insurance carrier send a Certificate of Insurance to me showing you are covered on this job for the amounts stated in the specifications.

* * *'

Overland made no objections to the terms of this letter and provided Preuitt with the Certificate of Insurance as requested. However, Doty, the operating partner, of Overland, testified his company had never been notified that it had been awarded a specific dollar contract and had no recollection of the work covered by Alternates 6 and 7. He stated that he had no knowledge of the letter until discovery proceedings after suit.

The job did not proceed immediately because of weather conditions. In March or April, 1965, Mr. Doty was called by the Superintendent on the job and requested to move the site dirt and the footings on the building. On April 8, 1965, Overland moved men and machines into the job, and according to Mr. Preuitt, worked thereafter until the latter part of May or early June, when it left the job site. Mr. Preuitt testified that Doty stated that he had to leave for 'three or four days' to 'finish another job' but that 'he would be right back'. Doty testified that Overland worked the job from about April 8, 1965 through June 23, 1965. The work was further delayed by a cyclone and some difficulty with a high pressure line. Doty stated that on June 23, 1965, the job was a 'great, big general mess' and 'bogged down' and so 'we left the job'. Some of the Overland work had been completed, but a substantial amount remained to be done.

Despite Doty's disclaimer of knowledge of a definite contract with Preuitt, Overland submitted to Preuitt an invoice for work performed 'Against contract' for $10,000.00 containing no itemization of hourly charges for men and machines. Apparently, such an invoice was again presented, and on May 21, 1965, Preuitt paid Overland $9,000.00 on such invoice, withholding $1,000.00 for the customary 10% retention.

The record then discloses that Preuitt requested Overland upon many occasions to complete its work, with no results; the School Board in turn was putting pressure on Preuitt to complete the earth work, particularly on the football field, so that it would be ready for practice; and, the Board finally notified Preuitt to complete the work or the Board would have it done and back-charge Preuitt. Under this compulsion and Overland's failure to complete its contract, Preuitt employed several others to complete the grading and excavating upon the basis of hourly charges for machinery and equipment. It apparently would have been possible for Preuitt to have obtained new bids on the uncompleted work under the Overland contract, but this would have entailed a new engineer's survey and would have been time-consuming. Preuitt did this completion work at a cost of $15,666.67 in addition to the $9,000.00 already paid Overland, making the total cost to Preuitt of $24,666.77 or $4,757.67 in excess of the original contract price to Overland of $19,909.00. The cost for the completion of the job was proved by actual cancelled checks from Preuitt, and Mr. Preuitt unequivocally testified that all of the work thus represented was work which Overland was obliged to do under the original bid and resulting subcontract, and no substantial proof was offered by Overland to the contrary. Presumably, the general contractor, Preuitt, would know what remained undone when Overland left the job. Overland made no attempt to subpoena the Preuitt-Board original general contract nor the plans and specifications, or to otherwise pursue discovery process to establish its apparent claim that Preuitt procured persons and machines to do work which Overland was not required to do either under contract or upon an hourly basis, the method used by Overland to support the...