Heidbrink v. Schaffner

• Decision Date: 05 April 1910
• Citation: 147 Mo. App. 632,127 S.W. 418
• Parties: HEIDBRINK v. SCHAFFNER et al.
• Court: Missouri Court of Appeals

127 S.W. 418

147 Mo. App. 632

HEIDBRINK v. SCHAFFNER et al.

St. Louis Court of Appeals. Missouri.

April 5, 1910.

Rehearing Denied April 19, 1910.

1. CONTRACTS (§ 306)—CONSTRUCTION—BUILDING CONTRACTS—"AGREEMENTS"—ABANDONMENT OF WORK — COMPLETION BY OTHER PARTY—CERTIFICATE BY ARCHITECT—"STIPULATIONS."

A building contract, providing that the owner on a certificate by the architect of the contractor's failure to perform any of the agreements may on three days' notice terminate the contract and complete the work, and that the expense incurred by the owner shall be certified by the architect, whose certificate shall be conclusive, does not provide against the contingency of abandonment of the work by the contractor, and where the contractor abandons the work the owner may complete it without obtaining the architect's certificate; the word "agreements" being synonymous with the word "stipulations."

2. CONTRACTS (§ 284)—BUILDING CONTRACTS —STIPULATIONS FOR CERTIFICATE OF ARCHITECT—ACTION FOR BREACH—CONDITION PRECEDENT.

A building contract stipulating for the certificate of the architect as to whether breaches of the contract have occurred, or whether payments are due under it, requires the party seeking damages for a breach embraced in the stipulation to allege and prove that a certificate was given.

3. CONTRACTS (§ 284)—BUILDING CONTRACTS —BREACH OF CONTRACT.

A contractor, in a building contract which stipulated that the owner on obtaining a certificate of the architect might terminate the contract and complete the work, and that the expense incurred by the owner should be audited by the architect, whose certificate should be conclusive, gave a bond conditioned on his performance of the contract. He abandoned the work, and the owner completed it and sued on the bond for the cost of completing the work. Held, that the owner need not allege and prove that the certificate had been given as to the expense of completing the work.

4. CONTRACTS (§ 346)—BUILDING CONTRACTS —ACTION FOR BREACH—ISSUES AND PROOF.

Where, in an action on the bond of a building contractor, who had abandoned the work, which was completed by the owner, the issue raised by the pleadings involved only the reasonable cost of the completion of the work, that the contract provided that the expense incurred by the owner in completing the work should be certified by the architect, whose certificate should be conclusive, was not available as a defense because not pleaded.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by William Heidbrink against L. S. Schaffner and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Jno. S. Leahy and Block & Sullivan, for appellants. Kurt Von Reppert, for respondent.

GOODE, J.

Defendant Schaffner contracted to erect a house for plaintiff for $5,800 by December 1, 1906. The work on the house progressed to a certain stage until December 1st, when Schaffner quit work, he testified, because he had no money to pay for labor or material, and claiming plaintiff had not paid him the installments of the price as agreed. Schaffner notified plaintiff he would not complete the house and abandoned the contract, so the jury must have found under the instruction about what facts would authorize a verdict for plaintiff. Plaintiff then took charge of the job and completed it, he alleges, at a cost above the agreed price of $1,841.22, for which sum he sued Schaffner and the other defendants who were his bondsmen. This notice was sent by Schaffner to plaintiff December 1st: "William Heidbrink, Overland Park, Missouri—Dear Sir: This is to notify you that as you have failed to make the payments called for by your contract for the erection of store and dwelling, at the southwest corner of Goodale and Lackland avenue, your contract with me is forfeited. Respectfully, L. S. Schaffner." At the date of said notice the building was not nearly finished, though it was to have been finished by said date. The contract for building the house was in writing and contained this article, which is material to the appeal: "Art. 5. Should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements contained herein, such refusal, neglect or failure being certified by the architects, the owner shall be at liberty, after three days' written notice to the contractor, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractor under this contract; and if the architects shall certify that such refusal, neglect or failure is sufficient ground for such action, the owner shall also be at liberty to terminate the employment of the contractor for the said work and to enter upon the premises and take possession, for the purpose of completing the work included under this contract, of all materials, tools and appliances thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor; and in case of such discontinuance of the employment of the contractor ____ shall not be entitled to receive any further payment under this contract until said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractor; but if such expense shall exceed such unpaid balance, the contractor shall pay the difference to the owner. The expense incurred by the owner as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the architects, whose certificate thereof shall be conclusive upon the parties."

The bond on which the present action was filed reads: "Know all men by these presents: That I, L. S. Schaffner, as principal, and we, T. F. Maloney and Cornelius P. Maloney, as securities, are jointly and severally held and firmly bound unto Wm. Heidbrink in the sum of five thousand ($5,000) dollars, lawful money of the United States of America, well and truly to be paid to the said Wm. Heidbrink, for which payment well and truly to be made, we bind ourselves, and each of us by himself, our and each of our heirs, executors and administrators, firmly by these presents. Sealed with our seals and signed with our hands this 8th day of September, in the year of our Lord nineteen hundred and six. The condition of the above obligation is such that whereas, the said L. S. Schaffner has on the day of the date of these presents, executed and entered into a certain contract for the erection of a certain building in said contract described, which contract is hereto annexed: Now, if the said L. S. Schaffner shall well and truly perform and fulfill all and every the covenants, conditions, stipulations and agreements in said contract mentioned to be performed and fulfilled, and any alterations and additions to said contract, provided such alterations and additions, if any such be made, shall not exceed in extra costs the sum of five hundred ($500): We, the said sureties, hereby expressly waiving all rights to be notified of, or by any further act to give our assent to such alterations and additions and acknowledging ourselves to be bound unconditionally for the faithful performance of said contract and of such alterations and additions within limit of said contract price and of such extra costs aforesaid, and shall keep the said Wm. Heidbrink harmless and indemnified from and...