Forsythe v. Starnes

• Decision Date: 14 June 1977
• Docket Number: No. 37766,37766
• Citation: 554 S.W.2d 100
• Parties: Jim FORSYTHE, Plaintiff-Respondent, v. Thomas E. STARNES and Shirley Starnes, Defendants-Appellants. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 100

554 S.W.2d 100

Jim FORSYTHE, Plaintiff-Respondent, v. Thomas E. STARNES and Shirley Starnes, Defendants-Appellants.

No. 37766.

Missouri Court of Appeals, St. Louis District, Division Three.

June 14, 1977.

Motion for Rehearing and/or Transfer Denied July 21, 1977.

Roberts & Roberts, Geoffrey L. Pratte, Farmington, for defendants-appellants.

Charles W. Medley, James A. Alexander, Farmington, for plaintiff-respondent.

WEIER, Judge.

Plaintiff Jim Forsythe filed suit against defendants Thomas and Shirley Starnes, husband and wife, seeking to enforce a mechanic's lien and to recover on contract for work performed in building a house for Mr. and Mrs. Starnes. Defendants filed a general denial and counterclaimed alleging faulty and incomplete performance by plaintiff in Count I. In Count II defendants alleged a fraudulent change in the specifications from a five ton to a three and one-half ton air conditioning unit. During the three day trial the jury heard detailed testimony on numerous disputed aspects of the agreement and the condition of the house when defendants occupied it. The trial court rendered judgment for plaintiff in the amount of $5,500 in accordance with the jury's verdict. Defendants appeal contending the trial court erred in the giving of two instructions, in refusing to allow examination of witnesses on several subjects, and in accepting the jury's verdict, which they assert is defective as a matter of law. We reverse and remand for a new trial. A general outline of the facts will help illuminate the points raised by defendants.

Defendants discussed the construction of their house with plaintiff several times prior to the signing of the contract on May 1, 1972. The contract included by reference several pages of specifications entitled "Proposal Bid," prepared by plaintiff and signed by the parties. It called for a total price of $28,540 with "FINAL PAYMENT WHEN HOME IS COMPLETED AND/OR BEFORE OCCUPANCY BY OWNER." Concerning modifications, the contract states: "(T)his agreement may be limited or qualified only by a subsequent agreement dated and signed by all the parties hereto." The first page of the specifications states: "NEW HOME AS PER PLAN." The last page of the specifications provided two alternates, one on an outside deck and the other on masonry work.

A brochure prepared by a "house plan" company with a brief diagram of the floor plan of the house as well as a drawing of what the completed landscaped home could look like was used by defendants as a worksheet to make some of the modifications they wanted. This brochure was not given to plaintiff but he did receive a blueprint of the floor plan and an elevation drawing or "picture" of the house as well as a set of modifications drawn up by defendants.

Plaintiff received one set of blueprints some time before beginning work on the house. This contained only two pages, one a floor plan and the other a picture of the front elevation. Charles Trautman, manager of Farmington Building Supply who helped plaintiff figure the lumber for the job, also stated that plaintiff had only two pages of blueprints and that the two pages were hooked together. This was disputed by defendants who testified the set of blueprints like the ones given plaintiff were detailed and contained five or six pages.

After the subfloor was in and the walls were laid out, plaintiff's set of the blueprints got wet in the rain. This "pretty well" destroyed them so "(y)ou couldn't read 'em you know, and tell what, what was what." From that point on plaintiff no longer had any blueprints but he did have the modifications drawn up by Mrs. Starnes. The original modifications were not introduced into evidence and plaintiff could not remember if they got wet or were thrown away.

Defendants ordered a second set of blueprints which contained eleven pages of plans. The house depicted therein was called the "Normandie" whereas the one shown in the brochure, which is the house defendants, wanted, was called "The LaSalle." The plans were similar.

Defendants' modifications included many changes from the brochure and blueprint plans. Some of the changes were as follows: An exterior storage area was converted into a den or office; the fireplace was moved from an outside to an inside wall; the stairs to the basement were made to wind near the top; a utility room was eliminated and made part of a bathroom; the furnace was moved to the basement; at least one closet was made smaller; a snack bar area was added in the kitchen; two sliding doors were added; one door was made into a window; and several windows were centered in the interior room wall.

Donald Brockmiller, an experienced general contractor called as a witness by defendants, testified that a builder could go ahead and build a house without plans or specifications but that it would take a lot of detailed work with the owner to find out where things were supposed to be. Defendants did visit the construction site once a day on the average. Plaintiff testified that during these visits defendants ordered many further changes in various parts of the house including altering the front porch, adding window wells, and centering windows with respect to the inside rooms instead of the outside walls.

Work on the house began May 15, 1972. There was some discussion during contract negotiations concerning a completion date. It would seem from the testimony that a completion date of September 1, 1972, was set, subject to weather conditions. Nothing about it is mentioned in the written contract. Defendants moved into the house about October 15, 1972, at which time plaintiff "thought the house was finished" but defendants thought it was "(v)ery, very uncompleted." When defendants moved in they had many complaints about the house, some of which were remedied to their satisfaction.

Still disgruntled over other problems in the house, defendants refused to pay plaintiff the remaining portion of the contract price. Farmington Building Supply Company filed suit against defendants to enforce a mechanic's lien and defendants paid them $3,750. Defendants also paid Trogdon Ready Mix $1,166.42 as a result of a lien notice. Plaintiff then filed this suit against defendants to collect the balance due on the contract. Defendants counterclaimed alleging that much of the work on the house was either: (1) inadequately or improperly done; or (2) built without defendants' authorization. They also claimed they were defrauded in that when plaintiff changed some proposed specifications to accommodate defendants' requests, plaintiff also changed a specification for an air conditioner, from a five ton unit to a three and one-half ton unit.

The items defendants claimed were built in an unworkmanlike manner or otherwise contrary to the agreement included the following: improper roof bracing, wavy-looking ceilings, cracked front steps, unsightly off-centered linen closet and door, straight stairs leading from the basement instead of having the top segment wind ninety degrees, electrical wiring unsafe and not in compliance with the National Electric Code, three improperly placed windows, an off-centered toilet and a vanity shorter than called for in the blueprints. Plaintiff's evidence indicated that some of these complaints may have been exaggerated, some things could not be built the way defendants wanted them (the stairs and the linen closet), and some things were built the way they were because defendants requested them to be built that way (front windows and perhaps the linen closet).

Items built which defendants claim were not authorized included an eight foot by thirty foot deck, four window wells and additional electrical outlets. Plaintiff conceded that twenty more electrical outlets were installed than the contract called for. However, plaintiff stated the deck and window wells had been authorized. There was conflicting testimony on this subject as well as nearly all other items.

In addition to the stated contract price, plaintiff claimed defendants owed him money for several items. These include time and material for installing the deck, window wells and electrical outlets, and for reworking the front porch. Plaintiff also claimed compensation for the three items which were undisputably authorized (storm door, roof vents and fluorescent light). Although defendants had not repaired any defects in the house during the three years they lived there prior to trial, they presented testimony and exhibits on what it would cost to improve the wiring and alter alleged structural defects in the house. They also introduced cancelled checks showing the rent paid while waiting to move into the house.

The jury returned a verdict assessing plaintiff's damages at $4,700 together with $800 interest, or a total of $5,500.

In this appeal defendants seek a new trial on several grounds. We agree that defendants should be given a new trial because of errors in the instructions. In addition to discussing these issues, this opinion will also cover other points raised by defendants which could arise again during retrial. Another matter not raised by the parties also must be discussed. This concerns a problem in not requiring the jury to return multiple verdicts, one on plaintiff's claim and two on defendants' counterclaim. When the case is retried with the jury returning several verdicts, the complexion of the case will change such that one of the instructions which was erroneous under the way the case was tried will no longer be defective (Instruction No. 2) and one other instruction will have to be altered to be compatible with the new verdict forms (Instruction No. 7). These problems will be discussed in greater detail under the issues where they arise.

Defendants first contend the trial court erred in giving Instruction No. 2 because it assumed the contract terms had been completed, thus ignoring an evidentiary dispute as to several of the terms. Instruction ...