Garner v. Drainage Dist. No. 1, Reformed

• Decision Date: 08 January 1916
• Docket Number: No. 1469.,1469.
• Citation: 181 S.W. 587
• Parties: GARNER v. DRAINAGE DIST. NO. 1, REFORMED, et al.
• Court: Missouri Court of Appeals

181 S.W. 587

GARNER v. DRAINAGE DIST. NO. 1, REFORMED, et al.

No. 1469.

Springfield Court of Appeals. Missouri.

January 8, 1916.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by John J. Garner against the Drainage District No. 1, Reformed, and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Wammack & Welborn and John L. Hodge, all of Bloomfield, for appellants. W. E. Edmonds, of Bernie, J. L. Fort, of Dexter, and N. A. Mozley, of Bloomfield, for respondent.

FARRINGTON, J.

This is a suit on a contract entered into between plaintiff (respondent) and the drainage district (referred to herein as the defendant). A. C. Spiker, the civil engineer of the district, was appointed by the county court to let the contract. The district is organized and incorporated by the county court of Stoddard county under the provisions of articles 3 and 4 of chapter 41 of the Revised Statutes of 1909. There is no question in this case as to the right of the parties to contract, nor is there any contention that there was anything illegal or invalid with reference to the contract. The whole question, so far as this appeal is concerned, is whether the plaintiff made a sufficient showing in his evidence to entitle him to the amount awarded him in the verdict and judgment for work done by him under the contract.

The petition originally contained three counts. During the trial the first count was dismissed. The second count seeks recovery on the theory of full performance by plaintiff of his contract and demand for the full amount of pay, to wit, $846.39, alleged to be due him by reason of having fully performed his part of the contract and completed the work according to the plans and specifications under which he had agreed to do the work. The jury found in their verdict for the defendant and against the plaintiff on the second count, but found for the plaintiff on the third count, assessing his damages at $450. Both plaintiff and defendant contend that the third count was brought on the contract, and not on the quantum meruit. It states that plaintiff, in complying with the contract, rendered valuable services to the defendant, which plaintiff claims was of the value of $846.39, and charges that A. C. Spiker, the engineer, refused to make a fair and just report of the kind and extent of plaintiff's labor done and performed under his contract.

The work was entered into on October 19, 1910, and under its terms the work was to be completed in two years. Shortly after the two years had expired, and the contract had not been completed, the county court granted an extension of time, which the law permitted, within which the contract was to be completed, and fixed the extension at one year from October 19, 1912, so that under the terms of the extension plaintiff was required to fulfill his contract and to fully perform the same by October 19, 1913. In April or May, 1913, the plaintiff was served with a written notice, directed to him by the county court, to the effect that his contract must be completed by October 19, 1913, and that no further extension of time would be made. The plaintiff does not in his evidence contend that he completed the work on October 19, 1913, but does contend that he fully performed it after such time and probably in the month of November. He then called on the engineer to view the work that had been done, and to make an estimate of the work done, and to give his judgment as to whether the work had been done according to the contract and fully completed. The engineer refused to do this, for the reason — as he says — that the county court had forfeited plaintiff's contract and had advertised for contractors to perform the contract under which plaintiff had defaulted. As stated, the...