Fagan v. Brock Motor Car Co.

• Decision Date: 02 March 1926
• Docket Number: No. 19068.,19068.
• Citation: 282 S.W. 135
• Parties: FAGAN v. BROOK MOTOR CAR CO.
• Court: Missouri Court of Appeals

282 S.W. 135

FAGAN v. BROOK MOTOR CAR CO.

No. 19068.

St. Louis Court of Appeals. Missouri.

March 2, 1926.

Rehearing Denied April 6, 1926.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by James Fagan against the Brock Motor Car Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Seneca C. Taylor and John P. Leahy, both of St. Louis, for appellant.

Jourdan & English, of St. Louis, for respondent.

SUTTON, C.

This is an action to recover $3,835.82, with interest, upon an account for materials furnished and labor performed in installing a steam heating system in the defendant's garage located at 4416 to 4420 Olive street in the city of St. Louis, under and pursuant to a contract entered into between the plaintiff and defendant, and to enforce a mechanic's lien upon the premises therefor. The cause was referred to Hon. Vincent Dempsey.

The contract under which the account accrued was prepared by C. N. Jacobs, the defendant's engineer and architect, and, omitting the signatures of the parties, is as follows:

"James Pagan agrees as follows: To furnish all of the necessary labor and materials to complete a certain heating system for the building now under construction at No. 4416-20 Olive street, the same occupying a lot fronting 100 feet on Olive street and running to alley, one story in height. The said system shall be what is known as the Warren Webster vacuum system, and shall embrace approximately 3,300 feet of radiation, and one Kewanee smokeless firebox boiler, capacity approximately 3,500 feet, together with the necessary pipe and fittings. He further agrees to submit for approval of C. N. Jacobs a complete and clear layout of said heating system, together with the specifications in connection, and this contract shall take effect when the said layout has been so approved. He further agrees to guarantee that the said heating system shall heat the building in showroom and office to a temperature of 70 degrees Fahrenheit and the rest of the building to 60 degrees, when the temperature outside is at 10 degrees below zero. He further agrees to guarantee that the gross cost of the work done, including all labor and materials and all participation in the premises upon the part of said Pagan, shall not exceed a total of fifty-four hundred ($5,400.00) dollars.

"R. E. Brock may require an accurate and evidenced account of all such cost to be kept, and full and complete evidence that the cost represented by the said Fagan shall be the exact actual cost to the said Fagan, no accounting of operating or overhead expense being considered. He may further require that all and every item of material be furnished to him at the exact market value regardless of consequences, and that each and every item of expense be approved by the engineer, C. N. Jacobs.

"In consideration of the faithful fulfillment of the above on the part of the said Fagan, R. H. Brock agrees to pay to or upon the order of said Fagan the exact amount of such labor and materials plus 20 per cent. of the said exact net cost, provided that the gross total shall not exceed the sum of fifty-four hundred dollars.

"Should the gross total cost be less than fifty-four hundred dollars the said Brock agrees to pay to the said Fagan a commission equal to 20 per cent. of the difference, as a special consideration in the premises.

"It is agreed that all wages shall be consistent with the prevailing union wage scale and that all materials shall be entered at absolute net cost, fully discounted.

"Payments to be made upon estimate as the work progresses, prepared by the said Fagan, representing 90 per cent. of the work completed, such estimate to have the approval of the engineer, C. N. Jacobs. Balance payable fifteen days after completion."

Pursuant to the requirements of this contract, the plaintiff made out and submitted plans and"specifications to C. N. Jacobs, and the same were by him approved. The aggregate amount of the account sued on, consisting of materials furnished and labor performed, is $5,335.82, and the account is credited with a cash payment of $1,500, leaving a balance of $3,835.82.

Defendant's answer denies generally the allegations of the petition, and sets up ten separate counterclaims.

The referee found in favor of the plaintiff and against the defendant upon the account for the sum of $3,835.82 and for interest amounting to $567, found in favor of the defendant and against the plaintiff on the second and fifth counterclaims for the aggregate sum of $75.44, found in favor of the plaintiff and against the defendant upon all the other counterclaims, and recommended that judgment be given in favor of the plaintiff for the sum of $4,327.38, and that the same be declared a special and first lien against the premises described in plaintiff's petition. The court gave judgment according to the recommendations of the referee. The defendant appeals.

The tenth counterclaim is founded upon the following clause of the contract:

"He (plaintiff) further agrees to guarantee that the said heating system shall heat the building in showroom and office to a temperature of 70 degrees Fahrenheit and the rest of the building to 60 degrees, when the temperature outside is at 10 degrees below zero."

The counterclaim sets up this clause of the contract and alleges that the heating system as installed by plaintiff will not heat the showroom and office to a temperature of 70 degrees Fahrenheit, and will not heat the rest of the building to a temperature of 60 degrees, when the temperature outside is at 10 degrees below zero. No question is made here upon the findings of the referee as to the other counterclaims set up in the answer.

The evidence for the plaintiff tended to show that the heating system was installed in accordance with the contract, plans, and specifications, in all respects; that in the installation of the heating system plaintiff furnished the materials and performed the labor as set forth and itemized in the account; that the materials furnished and labor performed were reasonably worth and actually cost plaintiff the amounts charged therefor in the account.

The evidence relating to the tenth counterclaim was conflicting. The defendant produced as" witnesses its president and many of its employees, who testified that the system as installed would not produce the temperatures specified in the contract. Defendant also produced expert witnesses who testified that the system installed was not of sufficient capacity to produce the temperatures specified in the contract. It is not disputed that the system installed was of the capacity specified in the contract, plans, and specifications.

The plaintiff produced expert witnesses who testified that the system was installed according to the contract, plans, and...