George L. Cousins Contracting Co. v. Acer Realty Co.
| Decision Date | 07 December 1937 |
| Docket Number | No. 24613.,24613. |
| Citation | 110 S.W.2d 885 |
| Parties | GEORGE L. COUSINS CONTRACTING CO. v. ACER REALTY CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; Jerry Mulloy, Judge.
"Not to be published in State Reports."
Action by the George L. Cousins Contracting Company against the Acer Realty Company, wherein defendants filed a counterclaim. From a judgment for defendant in accordance with the recommendation of a referee, plaintiff appealed to the Supreme Court, and that court transferred the cause to the St. Louis Court of Appeals (102 S.W. 2d 936).
Judgment affirmed.
Otto O. Fickeissen and Walter Burch, both of St. Louis, for appellant.
R. Shad Bennett, of St. Louis, for respondent.
SUTTON, Commissioner.
This is an action for the establishment and enforcement of a mechanic's lien for materials and labor furnished and performed in the construction of a building, on a tract of land, at Big Bend and Grant roads, in St. Louis county.
The lien account as set forth in the petition is itemized as follows:
286¾ tons gravel @ $1.25 per ton............. $ 358.44
2218/10 tons sand @ $1.25 per ton.............. 377.25
575 barrels cement @ $2.14 per barrel.......... 1230.50
5.31 tons steel ............................... 315.00
3975 pieces wall ties.......................... 152.09
660 pieces hollow tile 8×12×12 |
5038 pieces hollow tile 5×12×12 > ............. 435.34
969 pieces hollow tile 8×15×12 |
To services in connection with designing of
Structural steel ............................. 450.00
105 hours carpenter foreman's time @ $1.50
per hour .................................... 157.50
492½ hours carpenter's time @ $1.25 per hour 615.62
19½ hours iron workers foreman's time @
$1.60 per hour............................... 31.20
17¼ hours iron workers time @ $1.47½ per
hour ........................................ 25.44
40 hours cement finisher's time @ $1.31¼
per hour .................................... 52.50
8 hours time of hoisting engineer @ $1.35
per hour .................................... 10.80
6 hours brick-layers time @ $1.47½ per hour 8.85
787 hours common labor @ 78¾¢ per hour ........ 619.76
27000 Board ft. of lumber used as
forms for concrete, @ $27.00 per
M. ............................. $729.00
Credit against the above item of
lumber value of 27000 board feet
of lumber as salvage after use
27000 board feet @ $10.00 per M. 270.00
_______
459.00
________
Total ....................................... $5197.56
Credit cash ................................. 3574.25
________
Balance due .................................. $1623.31
The petition alleges that all the items of the account consist of gravel, sand, cement, steel, reinforcing steel, wall ties, hollow tile, steel designing, and building materials, and all necessary work and labor of installing the same; that each and every item of the account was reasonably worth the amount charged therefor, and that all of said items are reasonably worth the sum of $5,197.56; that there has been paid and credited on said account the sum of $3,574.25, leaving a balance of $1,623.31 still due plaintiff from defendant; that the first item of materials and labor of said account was furnished on July 8, 1933, and the last item on September 1, 1933; and that on November 17, 1933, the lien account was filed in the office of the clerk of the circuit court of St. Louis county.
The answer consists of a general denial and a counterclaim.
It is alleged in the counterclaim that on or about June 28, 1933, defendant entered into a contract in writing with the plaintiff whereby plaintiff contracted to furnish all materials and to do all the work necessary for and incidental to the reinforced concrete construction of a building to be located on the property of defendant at Big Bend and Grant roads, in St. Louis county, according to the plans and specifications for said building; that said contract, plans, and specifications provided, among other things, that plaintiff was to begin work at the earliest reasonable time and to continue with such work with due and diligent constancy until the terms of the contract had been fulfilled, and that all materials purchased in connection with the construction should be charged jointly to defendant and plaintiff, and that plaintiff would furnish defendant with a full and complete record of all persons employed by it in the performance of its duties under and by virtue of said contract, plans, and specifications, and that the defendant would pay to plaintiff the sum of $8,000 for the materials furnished and the labor performed, which said sum was to be paid at the rate of 75 per cent. of the total estimated proportion of the materials furnished and the work done, and the remainder or unpaid balance to be paid within thirty days after the construction had been completed and accepted by defendant and the architect; that the contract, plans, and specifications further provide that, if plaintiff should refuse or fail to proceed with said construction with due and diligent constancy, the defendant might with the approval of the architect complete the construction under the supervision of the architect, and that any excess expense occasioned or caused by plaintiff's failure to complete the construction should be paid by plaintiff to defendant, together with a reasonable attorney's fee for the collection of the same; that plaintiff on or about July 1, 1933, began work on said construction and continued such work in satisfactory manner until on or about August 4, 1933, when plaintiff ceased and discontinued the work and failed and refused to proceed with same until on or about September 1, 1933; that plaintiff failed to charge the materials used in said construction to both defendant and plaintiff and failed to furnish defendant with a complete record of the persons employed by it; that defendant paid to plaintiff, and for plaintiff at plaintiff's special instance and request prior to September 1, 1933, $3,579.25, which sum was in excess of the proportionate amount due plaintiff; that, after the refusal of plaintiff to proceed with said work, defendant with the approval of the architect proceeded with the work of completing said construction according to the terms and provisions of the contract, plans, and specifications under the supervision of the architect, and expended in the completion of said construction according to the terms and provisions of said contract, plans and specifications, $6,502.14 for labor, supervision, and materials, and $180 for insurance, which, together with $3,579.25 previously paid, made a total cost of $10,261.39 for the completion of said construction, which said cost was $2,261.39 in excess of the contract price of $8,000. And defendant prays that the court take an accounting of the expense incurred in completing said construction and of the payments made to plaintiff and at plaintiff's request and direction, and that defendant have judgment against plaintiff for the expenses incurred in excess of the contract price together with interest and an attorney's fee of $500.
Plaintiff's reply denies generally the allegations of the answer and alleges that plaintiff was prevented from completing the construction by the acts of the defendant in refusing to carry out certain agreements made with respect to the employment of union labor.
Upon the filing of the petition, on February 15, 1934, the cause was assigned to division No. 1 of the court. At the May term, 1934, plaintiff requested and obtained a continuance to the September term. At the September term plaintiff applied for and obtained a continuance to October 15th. On October 15th plaintiff applied for and obtained a further continuance to December 3d. On October 16th defendant applied for and obtained a change of venue transferring the cause to division No. 2.
On October 22d the court, division No. 2, at the request of plaintiff, ordered the cause continued to the January term, 1935.
On November 5, 1934, the court, on motion of defendant, over the objection of the plaintiff, set aside said order of continuance, directed a reference of the cause, and appointed Hon. Robert B. Denny as referee to take and report the testimony with the findings of fact and conclusions of law made by him.
On November 28th plaintiff filed its application for a change of venue, alleging as ground therefor the undue influence of the defendant over the mind of the judge. On the same day the court denied said application.
Thereupon plaintiff filed in this court its petition for a writ of prohibition to restrain said judge from the further exercise of jurisdiction in this cause on the ground that said judge had been legally disqualified to act as judge in this cause by the presentation of plaintiff's application for a change of venue.
On November 28th, upon the filing of said petition for a writ of prohibition, this court notified said judge and the referee to take no further steps or proceedings in this cause until this court had passed upon said petition for a writ of prohibition. On December 10th said petition for writ of prohibition was by this court denied.
On December 11th plaintiff filed in this cause a further application for a change of venue, alleging as ground therefor the undue influence of defendant over the mind of the judge, and alleging that the information and knowledge of the existence of such ground first came to plaintiff on November 27th. This further application for a change of venue was overruled on the same day it was filed.
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