J. A. Schaefer Const. Co. v. Jones

• Citation: 3 S.W.2d 286
• Decision Date: 06 March 1928
• Docket Number: No. 19971.,19971.
• Parties: J. A. SCHAEFER CONST. CO. v. JONES et al.
• Court: Court of Appeal of Missouri (US)

3 S.W.2d 286

J. A. SCHAEFER CONST. CO. v. JONES et al.

No. 19971.

St. Louis Court of Appeals. Missouri.

March 6, 1928.

Rehearing Denied March 20, 1928.

Appeal from St. Louis Circuit Court; Harry A. Rosskopf, Judge.

"Not to be officially published."

Suit by the J. A. Schaefer Construction Company against Paul Jones, Jr., and others. Verdict and judgment for plaintiff. From an order granting a new trial and the judgment, plaintiff appeals. Reversed and remanded, with directions to enter judgment on verdict of jury.

Charles A. Lich, of St. Louis, for appellant.

Jones, Hocker, Sullivan & Angert, of St. Louis, for respondents Jones.

NIPPER, J.

Plaintiff brought this suit against the defendants to recover for labor performed in excavating for a garage building. The amount sued for was $2,659.80, with interest. Defendants Nixon and Keeley, who are residents of the state of Illinois, were not served with process, and the suit as to them was dismissed. Defendant Donaldson was in default, and judgment was directed against him by the court. There was a verdict and judgment against the defendants Paul Jones and Paul Jones, Jr. The defendants last named filed their motion for a new trial, and it was sustained by the court on the ground that an instruction in the nature of a demurrer, offered by defendants, should have been given. From this order and judgment plaintiff appealed.

The petition alleges that defendants Nixon and Keeley are partners under the firm name of Nixon & Keeley Construction Company, and that all of the defendants were engaged in a partnership enterprise in the matter of building and erecting the Donaldson Court Apartments; that they were building the same as partners; and that each of the defendants were to receive an interest in the building when constructed and completed. Plaintiff further alleges that on or about November 5, 1922, having theretofore been engaged and employed by defendants Nixon & Keeley, it proceeded to excavate for a garage building for said apartments; that it performed the work, and that the reasonable value of the services was the amount above stated; that the work was accepted by the defendants, but that they have failed and refused to pay the bill.

The answer of the defendants Paul Jones and Paul Jones, Jr., was a general denial, coupled with a specific denial of the allegations of a partnership, and a further plea to the effect that plaintiff is estopped from asserting any claim against these defendants by reason of the fact that it had agreed in writing with the defendant Donaldson to accept second mortgage bonds in payment of the account sued for.

The first witness to testify for plaintiff was Clark Nixon, of the firm of Nixon &amp Keeley, who had charge of the construction of the Donaldson Court Apartments, located in St. Louis county. He testified: That this building was started by Charles W. Donaldson, Paul Jones, Paul Jones, Jr., and Nixon & Keeley, and that there was in the beginning no written agreement between the parties, but that the oral agreement was that Donaldson was to do the engineering and supervise the work. Paul Jones and Paul Jones, Jr., were to handle the financing of the enterprise, and Nixon & Keeley, general contractors, had charge of the construction and the employment of subcontractors. That all of the defendants met almost daily and conferred over the progress of the work. The title to the ground on which the building was being built was in an employee of the Paul Jones Realty Company. When the work was completed Nixon & Keeley were to receive one-third of the equity in the property, Donaldson was to receive one-third, and the Joneses one-third. Paul Jones and Paul Jones, Jr., secured the money and furnished the loans on the building. Nixon testified that the bill of plaintiff was correct.

On cross-examination he stated that the total cost of the Donaldson Court Apartments was about $750,000, and that the original plan to divide the equity in the property when the building was completed was later abandoned because it had been estimated that the cost of construction would only be about $325,000, and when the building was about two-thirds completed it was discovered that it would cost much more than this amount to complete it. When this discovery was made there was an arrangement made between Donaldson, Paul Jones, Paul Jones, Jr., and Nixon & Keeley to the effect that the two Joneses were to take over the Garden Court, another apartment building, with certain debts attached to it, and that Donaldson and Nixon & Keeley were to take over the Donaldson Court Apartment, with certain debts. Afterwards, Nixon and Keeley sold their interest in the Donaldson Court Apartment to Donaldson, taking $36,000 worth of second mortgage bonds for their interest therein. Nixon further testified that he had presented plaintiff's bill to Donaldson two or three times, and did not know why Donaldson did not pay it. He also testified that in April or May, 1922, plaintiff had agreed to take second mortgage bonds in payment of his bill; that this was after Donaldson had acquired the building, and after the work had been done and the building completed.

It appears from the testimony that, as originally planned, when these two buildings were completed a corporation was to be organized to hold title to the buildings and equities, divided in the manner heretofore stated.

J. A. Schaefer, president of the plaintiff company, testified that he did the excavating on the Donaldson Court Apartments in the summer of 1922, and that he also excavated for the garage incident to that building in November, 1922. For the work done in the summer he was paid, but for the work done in November, in excavating for the garages, he had received no pay. He was employed, he said, by Nixon & Keeley, at which time he asked Nixon where the money was coming from to pay him. This was with respect to...