Hart and Son Hauling, Inc. v. MacHaffie, 49426

• Decision Date: 11 March 1986
• Docket Number: No. 49426,49426
• Citation: Hart and Son Hauling, Inc. v. MacHaffie, 706 S.W.2d 586 (Mo. App. 1986)
• Parties: HART AND SON HAULING, INC., Respondent, v. Terry MacHAFFIE, Appellant.
• Court: Missouri Court of Appeals

Page 586

706 S.W.2d 586

HART AND SON HAULING, INC., Respondent, v. Terry MacHAFFIE, Appellant.

No. 49426.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 11, 1986.

Ruppert & Benjamin, Terrance L. Farris, Clayton, for appellant.

Thompson & Mitchell, Gordon L. Ankney, St. Louis, for respondent.

CRANDALL, Presiding Judge.

Defendant, Terry MacHaffie, appeals from a judgment in favor of plaintiff, Hart and Son Hauling, Inc., d/b/a G.J.H. Contracting Company, in a court-tried action for breach of a construction contract for the remodeling of defendant's residence and from a judgment in favor of plaintiff on defendant's counterclaim. We affirm.

Our standard of review in a court-tried case is guided by the oft-cited Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). We accept as true the evidence and reasonable inferences therefrom favorable to the prevailing party and disregard the contrary evidence. Ware v. Ware, 647 S.W.2d 582, 584 (Mo.App.1983). Great deference is accorded the trial court's conclusions. Fountain v. Schlanker, 651 S.W.2d 594, 596 (Mo.App.1983).

The evidence at trial established that defendant had received a Housing and Urban Development (HUD) Chapter 312 loan for the renovation of her residence. The loan was to be administered by the City of St. Louis through its Community Development Agency (CDA). On April 6, 1981, defendant and plaintiff, the general contractor, entered into a contract to complete the project for the sum of $51,708. Plaintiff commenced work that same month.

In June, plaintiff filed a request for payment. On June 24, the architect overseeing the project certified that 47 percent of the work had been completed and executed authorization for the first progress payment. Defendant refused to sign the certificate for payment unless plaintiff agreed to substantially complete all work by August 27, 1981. Plaintiff agreed to that condition. When plaintiff's president went to pick up the check from defendant, however, defendant had a second pre-condition for payment. She required him to sign an agreement which said: (1) that defendant had not contributed to any delay in construction; and (2) that plaintiff would pay $10, as liquidated damages, for everyday after August 27, 1981, for which construction was not completed. Plaintiff's president signed the agreement and received the check for $24,184.

On July 29, 1981, plaintiff stopped work on the project and requested a second progress payment. On August 5, the architect certified that 65 percent of the work had been completed and executed a second authorization of payment in the amount of $9,202. Defendant refused to sign this certificate for payment. On August 13, 1981, after its workers had attempted to return to the job but were unable to gain entry into the house, plaintiff wrote a letter to defendant. Defendant did not respond. Plaintiff then terminated work at defendant's residence.

After a final evaluation on April 1, 1982, the architect authorized a payment of $10,456 for the work plaintiff had performed from the time of the first progress payment until construction was halted. Defendant again refused to sign the certificate for payment. After trial, the court awarded plaintiff that final progress payment and loss of profits of $10,040.68, plus prejudgment interest thereon, for a total of $26,041.03 in damages.

Defendant raises two points on appeal. She alleges trial court error in the denial of her counterclaim for damages and in the award of damages to plaintiff. The threshold issue is whether defendant breached the contract by preventing its completion. If she did, she would not be entitled to recover damages.

Defendant asserts that plaintiff repudiated the contract when its workers left the job on July 29. Anticipatory breach by repudiation occurs when a party to a contract manifests a "positive intention not to perform" either by expressed statements or by conduct. Carmel v. Dieckmann, 617 S.W.2d 459, 460 (Mo.App.1981). In the instant case, plaintiff's president told his men to discontinue working on the job until he got things "squared away" about the progress payments. In a construction contract which provides for progress payments as the work proceeds, the architect's certification of payment is conclusive upon the parties. See, e.g. Public Water Supply Dist. No. 8 of Jefferson County v. Maryland Casualty Co., 478 S.W.2d 293, 296 (Mo.1972). When a progress payment is due and not made, a builder is entitled to suspend his performance and await either assurances of payment or actual payment. Here, plaintiff had encountered difficulty in procuring the first progress payment and,...