Hunt v. Owen Bldg. & Inv. Co.

• Decision Date: 26 January 1920
• Docket Number: No. 13152.,13152.
• Citation: 219 S.W. 138
• Court: Missouri Court of Appeals
• Parties: HUNT v. OWEN BLDG. & INV. CO. et al.

219 S.W. 138

HUNT v. OWEN BLDG. & INV. CO. et al.

No. 13152.

Kansas City Court of Appeals, Missouri.

January 26, 1920.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Suit by A. B. Hunt, assignee of Tilleson & Weber, a copartnership, against the Owen Building & Investment Company and others. From the decree rendered complainant appeals. Affirmed.

B. F. Deatherage and Goodwin Creason, both of Kansas City, for appellant.

Haff, Meservey, German & Michaels, of Kansas City, for respondents.

TRIMBLE, J.

This is an equitable action under the statute (sections 8235a-8235g, Laws 1911, p. 314), to adjudicate and determine the rights of various parties claiming liens for labor and materials used in the erection of the St. Regis Hotel in Kansas City. Tilleson & Weber had the contract for installing the heating and plumbing, and the suit was brought by Hunt, their assignee. The other lien claimants in the case have had their rights disposed of and they are no longer involved herein. The consideration in the first written contract with Tilleson & Weber was $11,800, subject to such alterations and deductions as might be made under a provision therefor in the contract. A larger amount of extra work was claimed to have been done under orders which will be hereinafter referred to; the bills for this extra work amounted to $485.23. In addition to this, there was a second and wholly separate contract for certain kitchen plumbing amounting to $500. This second contract, however, is not in dispute, nor is the work done thereunder in question. The total amount of the consideration named in the two written contracts, plus the amount claimed for the extras, aggregates $12,785.23, and it is conceded that only $11,153.94 was paid the contractors, leaving a balance of $1,631.29. It is to recover this sum and to enforce a lien therefor that plaintiff brought his suit. The Owen Building & Investment Company is the owner of the hotel, and it filed an answer wherein the execution of the two written contracts and the payment of the said sum of $11,154.34 were admitted; but it denied that any extra work or materials was done or were furnished by the contractors, or that the same was done or were furnished at the request of the owner. The answer further set up that the contract provided that if the contractor failed to furnish materials of the kind or quality called for, or used unskillful workmen, whereby the work was faulty or defective, the owner should provide them and deduct the cost from the amount then due or thereafter to become due to the contractors; that faulty, defective, and unskillful work was done and the owner was compelled to and did expend, and will be called upon in the future to expend, large sums for materials of the proper quality and to complete the job according to specifications; and that by reason of the expenditures already made nothing remained due on said contracts.

The answer then further alleged that it had been damaged in the sum of $2,000 by reason of certain specified defects in the work and in varying from the specifications or substituting other methods therein provided for, and prayed that the same might be set off against any claim on said contract. The answer also set up that the lien statement filed in the clerk's office was invalid and not sufficient to support a lien. The reply set up facts, hereinafter referred to, whereby the plaintiff charged the owner was estopped or precluded from setting up any of the defenses specified in their answer.

The case was tried before the court without a jury, and the court found that—

"There is now due plaintiff, A. B. Hunt, assignee of Tilleson & Weber, upon an adjustment of all claims disclosed by the pleadings and evidence the sum of $76.80, for which personal judgment should be rendered against Owen Building & Investment Company, the defendant; but the court further finds that plaintiff is not entitled to the enforcement of a mechanic's lien against the property described in plaintiff's petition."

A personal judgment was thereupon rendered against the owner for that amount, but a lien on the property was denied. No declarations of law or findings of fact were asked or given; the court finding generally the above amount to be due, as stated, "upon an adjustment of all claims disclosed by the pleadings and evidence."

The petition, or bill, is in one count and proceeds on the quantum meruit, setting up the two written contracts and the ordering of the extras, stating that the work was done and the materials were furnished within certain specified dates, under the respective contracts, and all used in and upon the building, and alleging that the total amount of the reasonable value of all the work done and materials furnished was $12,785.23; that the owner had paid $11,153.94, leaving a balance of $1,631.29, for which judgment was prayed and a lien asked. An itemized account of the whole work was attached.

The petition alleged that the work done and the furnishing of materials under the first contract began on January 10, 1914, and ended November 23, 1914, the date of the last item; that the doing of the work and furnishing of the materials, included in what is known as "extras," was effected from time to time during the erection of the building, the last item of such extras being performed and furnished on November 12, 1914; that the work and furnishing of materials under the second written contract began on September 12, 1914, and ended on October 24, 1914, when the last item thereunder was furnished; that Tilleson & Weber assigned their rights to Hunt on January 13, 1915; and that on March 11, 1915, within six months of the accruing of the indebtedness, the plaintiff, Hunt, as assignee of Tilleson & Weber, filed his lien claim in the clerk's office.

The first question to be determined is whether the defendant owner is precluded from contesting plaintiff's demand. For, if so, then, as the court disallowed all but $76.80 thereof, the judgment is erroneous, regardless of any other question. Plaintiff's contention is that the contract, in effect, provides that the judgment of the architects should decide whether the work complied with the contract; that the architects accepted the work; and therefore this was a decision upon their part that the work was in accordance with the contract, which decision, in the absence of fraud, was final and binding upon the parties.

The two written contracts were identical (except as to the work to be done, the price to be paid, and the time of completion), being the "uniform contract" adopted and recommended for general use by the American Institute of Architects and the National Association of Builders. Hence in referring to the general provisions therein we shall do so as though there were but one contract.

The contract provided that the materials should be furnished and the work done according to drawings and as described in specifications prepared by Owen & Payson, architects; that the work was to be done under their direction; and that their "decision as to the true construction and meaning of the drawings and specifications shall be final." It also provided that the architects were to furnish "such additional drawings and explanations as may be necessary to detail and illustrate the work to be done," and the parties therein agreed to "conform to and abide by the same so far as they may be consistent with the purpose and intent of the original drawings and specifications."

The contract further provided that no alterations should be made in the work except upon the written order of the architects, the amount to be paid by the owner or allowed by the contractor, by virtue of such alterations, to be stated in said order.

The contract further provided that the contractor should provide facilities at all times for the inspection of the work by the architects or their "authorized representative," and that

The contractor should, "within 24 hours after receiving written notice from the architect to that effect, proceed to remove from the grounds or buildings all materials condemned by him, whether worked or unworked, and to take down all portions of the work which the architect shall by like written notice condemn as unsound or improper, or as in any way failing to conform to the drawings and specifications, and shall make good all work damaged or destroyed thereby."

Said contract also provided that if the contractors neglected to perform any agreements contained in the contract that fact should be certified and the owner could deduct the costs of remedying the matter from any money then due or thereafter to become due under the contract, or, if the architects should certify that the neglect to perform was sufficient ground therefor, the owner could cancel the contract.

Under article 8 of the contract the architects could extend the time fixed for the completion of the work if delay arose through any of the causes mentioned therein.

Article 9 provided that the sum to be paid by the owner to the contractor for said work and materials should be ($11,800 in one and $500 in the other) "subject to additions and deductions as hereinbefore provided"; that the owner should pay the bills for materials and fixtures installed in the building, charging the same up to the contractors, and from time to time 80 per cent. of the value of the labor; and that—

"The final payment shall be...