Hadley-Dean Glass Co. v. Kay, 24584.
| Decision Date | 20 June 1938 |
| Docket Number | No. 24584.,24584. |
| Citation | 118 S.W.2d 31 |
| Court | Missouri Court of Appeals |
| Parties | HADLEY-DEAN GLASS CO. v. KAY. |
Appeal from Circuit Court, St. Louis County; John A. Witthaus, Judge.
"Not to be published in State Reports."
Action by the Hadley-Dean Glass Company against Louis Kay, doing business as Kay's Department Store, to recover an amount allegedly due under a contract for the installation of plate glass windows, wherein defendant counterclaimed for damages. Judgment for defendant on plaintiff's cause of action, and for plaintiff on defendant's counterclaim, and plaintiff appeals.
Affirmed.
Albert S. Ennis, of Festus, for appellant.
Terry, Terry & Terry, of Festus, for respondent.
BENNICK, Commissioner.
This is an action in which plaintiff, Hadley-Dean Glass Company, seeks to recover the sum of $195 alleged to be due it under an express contract with defendant, Louis Kay, for the installation of plate glass windows in a certain building owned by the latter in Festus, Missouri.
The answer was a general denial, followed by a counterclaim in which defendant alleged that plaintiff had carelessly and negligently failed to do the work in a good, substantial, and workmanlike manner and according to the plans and specifications of the contract; that by reason thereof the glass, window frames, and other materials were broken, injured, destroyed, and made worthless; and that as the result of the negligent manner in which plaintiff had performed the contract, defendant had been damaged in the sum of $295, for which sum he prayed judgment against plaintiff.
Originating in the Circuit Court of Jefferson County, the cause was sent on change of venue to the Circuit Court of St. Louis County, wherein, upon a trial to the court without the aid of a jury and without any declarations of law having been asked or given, judgment was rendered for defendant on plaintiff's cause of action, and for plaintiff on defendant's counterclaim. Plaintiff's appeal to this court has followed in the usual course.
Plaintiff's contention on this appeal is that all the elements of its cause of action were admitted by defendant's own evidence, and that it was consequently entitled to recover on its cause of action as a matter of law.
It is true that defendant did admit the execution of the contract sued on, as well as plaintiff's purported performance thereunder, but he did not admit that the work had been done in a workmanlike manner so as to have constituted performance of the contract on plaintiff's part. To the contrary, his evidence showed that some of the opalite plates cracked, if not the very day they were installed, at least within a few days thereafter, and that the large plate glass windows had been installed in such a fashion that they were neither plumb nor secure in their frames. Plaintiff's explanation was that the front of the building was itself "out of square", but the truth of the matter was for the trial judge to determine, and his finding for defendant on plaintiff's cause of action has...
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Craig v. Jo B. Gardner, Inc.
...had been based solely on their contract, we could not sua sponte grant unrequested relief in quantum meruit, Hadley-Dean Glass Co. v. Kay, 118 S.W.2d 31, 32 (Mo.App.1938); Wright v. Fick, 303 S.W.2d 157, 159 (Mo.App.1957). However, it is permissible to ask for alternative relief, either on ......
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McAlpine Co. v. Graham
...to so find. While 'full performance' on its part is required before plaintiff is entitled to recover on the contract, Hadley-Dean Glass Co. v. Kay, Mo.App., 118 S.W.2d 31, literal and precise performance is not demanded. 'Slight or trivial defects, imperfections or variations will not bar h......
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