Freeman Contracting Co. v. Lefferdink

• Decision Date: 18 July 1967
• Docket Number: No. 32565,32565
• Citation: 419 S.W.2d 266
• Parties: FREEMAN CONTRACTING COMPANY, a Corporation, Plaintiff-Appellant, v. F. E. LEFFERDINK and Maude C. Lefferdink, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 266

419 S.W.2d 266

FREEMAN CONTRACTING COMPANY, a Corporation, Plaintiff-Appellant, v. F. E. LEFFERDINK and Maude C. Lefferdink, Defendants-Respondents.

No. 32565.

St. Louis Court of Appeals, Missouri.

July 18, 1967.

Motion for Rehearing or to Transfer to Supreme Court denied

Sept. 12, 1967.

William R. Dorsey, Clayton, for plaintiff-appellant.

Alvin H. Juergensmeyer, Warrenton, Darryl L. Hicks, Warrenton, for defendants-respondents.

BRADY, Commissioner.

Plaintiff filed suit for a money judgment and for a mechanics' lien for work done under contract on defendants' house. Defendants counterclaimed for damages in the amount of $2,500.00. A jury-waived trial resulted in judgment for the defendants upon plaintiff's cause of action and for defendants on their counterclaim in the amount prayed for. Plaintiff appeals.

The pleadings are of some importance to the issues presented by this appeal. The pertinent parts of the petition are the allegations plaintiff did this work pursuant to a contract between the parties and that, by inclusion of the dates involved, the plaintiff had filed a mechanics' lien containing a true account of the demand due it together with a true description of the property involved within the previous six months. The prayer was for '* * * judgment against the defendants F. E. Lefferdink and Maude C. Lefferdink, his wife for the sum of $1,800 * * * ' and for the establishment of a lien in that amount against this property. The defendants' answer was a general denial and by way of special defenses they alleged '* * * plaintiff never performed the said contract or raised the foundation of defendants' house or closed the cracks in the walls and foundation of defendants' house, but that when plaintiff left there were additional cracks in the walls * * *.' Defendants' counterclaim alleged 'plaintiff and defendants entered into an agreement * * *' for the work called for by the contract as interpreted by defendants and that '* * * defendants agreed to pay plaintiff * * *' the contract price upon completion. In support of their counterclaim defendants alleged that while in the performance of the work called for by the contract the plaintiff's employees '* * * negligently and carelessly pushed the walls of the house by means of a jack and brace and by such negligence caused additional cracks in the walls of the house. * * * That plaintiff selected the machinery and tools for the job of raising the walls and on failure of the machinery and tools to raise the walls, the plaintiff negligently applied pressure on the side of the house with the jack and other equipment, the type and nature of which caused additional cracks in the walls of defendants' residence.' (Emphasis supplied.) The prayer of the counterclaim reads: '* * * defendants pray judgment against plaintiff * * *.'

The mechanics' lien statement which had been filed previous to the petition involved in this case referred to a contract with 'F. E. Lefferdink and Maude C. Lefferdink, his wife' and the account described in the mechanics' lien is for a total of $1,800.00. In response to a direct question by the court plaintiff's counsel stated it was relying entirely upon the contract and was not proceeding upon any theory of quantum meruit.

Our review in a non-jury case goes to both the law and the evidence. Robinson Lumber Co. v. Lowrey, Mo.App., 276 S.W.2d 636; Schabbing v. Seabaugh, Mo.App., 395 S.W.2d 256. We find the facts to be as follows. Mr. Lefferdink requested one of plaintiff's employees to look at defendants' house to determine if something could be done to stop the foundation from setting. The employee inspected the property and told Mr. Lefferdink the foundation could be raised as a result of which the cracks would be closed. Mr. Lefferdink testified that he then went home and looking in the yellow pages of the St. Louis telephone directory found the advertising by the plaintiff which defendants offered into evidence and which was admitted without objection. It is unnecessary to reproduce that advertising here. It is similar to a page which was attached to the contract in that it has a diagram showing how the Freeman System operates. The essentials of that page will be set out later herein. The only thing the advertisement says about cracks is 'FOUNDATION & SETTLING CRACKS STOPPED SYSTEMATICALLY.'

Plaintiff later sent a contract to defendants' home. The pertinent parts of that contract are: 'We propose to install a series of 12 patented pumped piers (THE FREEMAN SYSTEM) as follows: We are to furnish all labor, material, and equipment necessary to complete this work. We are to clean up and leave place in a workmanlike manner. This work to be done for the sum of Eighteen Hundred ($1,800.00) Dollars to be paid in full upon completion of said work.' The contract also provided for 'Location of piers' as follows: '(5) five piers west wall. (1) one pier So. W. corner. (5) five piers north wall. (1) one pier No. E. corner (front). We are to do necessary tuckpointing of cracks in brickwork. Said work is guaranteed for a period of five (5) years from date of completion.' The contract also bears the statement 'Accepted May 31, 1963'; and the signature 'F. E. Lefferdink'.

At the time the contract was signed there was stapled to it another sheet of paper which contained a diagram of how the Freeman System works together with a brief explanation of it. At the top the following appears: 'WALL CRACKS CORRECTED'. There is no other reference to cracks in that material which deals with raising and stabilizing foundations. There was extensive testimony as to just what the Freeman System was. Stating it as simply as is possible, the system requires excavating at the side of the foundation of the house, undercutting the footing, and drilling the required number of 12" holes down to rock or firm bearing soil. A 2" pipe with a bell flange at the bottom is then placed in the hole and it is filled with concrete with the result that a pier is formed with a reinforced pad under the footing. After the concrete has set a hydraulic pump is attached to the pipe and a loose mixture of sand loam and cement is pumped through the pipe underneath the pier forcing the pier upward. The soil mixture later hardens to form a solid footing under the pier. Mr. Lefferdink admitted that the piers stopped the settling of the foundation of the house. The plaintiff's evidence was that after he started the work one of the employees discovered a pier already at one of the locations where plaintiff was to install one and after telling Mr. Lefferdink of this condition and upon no objections being raised by him, only eleven piers were installed. The plaintiff's evidence was that he told Mr. Lefferdink $150.00 was to be deducted from the contract price due to the fact that only eleven piers were installed. Defendants do not deny Mr. Lefferdink was so informed but assert there was no agreement as to that matter.

In view of the disposition made herein as to the counterclaim it is unnecessary to detail the damage to the house which defendants claimed was caused by plaintiff. It can best be summarized by dividing it into several categories. The first of these we will refer to as 'crack damage'. Some of these cracks appeared in the outside brick walls and some appeared in the interior plastered walls. The confused manner in which the testimony as to these cracks was developed defeats any attempt to separate the cracks into those that occurred in the exterior brick walls as contrasted with those that occurred in the interior plastered walls. However, it is unnecessary to do so. It is sufficient to say that when plaintiff had completed its work new cracks had appeared in both places but the outside cracks were tuckpointed by the plaintiff. There were complaints other than cracks. The fireplace was 'shoved over, out of line.' Defendants also complained that the plaintiff so operated the braces and machinery that the house was raised off of the foundation and the east wall of his basement has been pushed farther east and out of line. He also complained about the front door being out of square and that the windows no longer raised easily because the frames had been twisted.

With respect to the issue of negligence, Mr. Lefferdink admitted he was totally inexperienced in matters such as are here involved and, in fact, had not done any building. He also was asked the following questions and gave the answer shown: (he was speaking of a jack and brace used by plaintiff) 'Q. And what you think they should have done was push it in, or down, or what? A. This didn't need no pushing in. He was just trying to help the mudjacks out, I think, was the only reason he put it in there. He couldn't life it with his mudjack so he took these braces to help it. Q. Let me see if this is a fair statement of what you're telling me. You correct me now if I don't word it right. You're saying the negligence actually is in the angle the jack was used? A. That's true. Q. You say that's negligence because they used a 45 degree instead of a 90 degree? A. If they wanted to push it straight in, they should have had it straight, which Mr. Freeman told his brother-in-law, 'Now put the prop lower down and raise that wall again and take those cycle sections out and let the wall down.' But that never was done. I don't think it was because I'll tell you why--he had to have another hole because you take from here up to there, a certain distance, if you put it straight in there is going to be about a foot and a half or so farther back, but there was no other hole dug. * * * Q. And the negligence again is the angle of the jack, you're saying--that's the sole negligence and carelessness that they had? Is that a fair statement to make? A. That's right.' In view of this testimony we will not further dwell upon the other complaints of damage to this house.

As stated earlier defendants were awarded judgment on their...