Joern v. Bang

• Citation: 200 S.W. 737
• Decision Date: 05 February 1918
• Docket Number: No. 14963.,14963.
• Parties: JOERN v. BANG.
• Court: Court of Appeal of Missouri (US)

200 S.W. 737

JOERN v. BANG.

No. 14963.

St. Louis Court of Appeals. Missouri.

February 5, 1918.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

"Not to be officially published."

Action by Charles Joern, doing business under the name of Chas. Joern Oven Company, against George A. Bang. Judgment for plaintiff, and defendant appeals. Affirmed.

Seneca N. Taylor and Walter N. Fisher, both of St. Louis, for appellant. Buder & Buder, of St. Louis, for respondent.

BECKER, J.

This is an action by plaintiff to recover a judgment for $529.09 against defendant for furnishing certain brickwork for the alterations and additions to a building owned by the defendant. Defendant filed a counterclaim. From a judgment for plaintiff on his cause of action, in a sum aggregating $442.59, and against the defendant on his counterclaim, after unavailing motions for a new trial and in arrest of judgment, the defendant appeals.

The petition sets up a written contract whereby plaintiff agreed to repair and remodel a certain building belonging to the defendant according to certain plans, and alleges during the course of the work defendant required plaintiff to do certain extra brickwork and to furnish extra material and furnish additional labor; that "all the brickwork, alterations, and extras were made at the request of the defendant, and that the labor done and material furnished in connection therewith were at the special instance and request of the defendant, as also were other minor extras more particularly specified in an account set out in the petition," and further alleges that:

"By reason thereof defendant has become indebted to plaintiff for work and labor done and material furnished as set out in the following account."

The petition then sets out the account in full, showing the various items and the value thereof, together with a list of credits for payments and allowances made by and to the defendant. The petition states that the amounts set opposite the various items enumerated in the account are the reasonable values thereof, and prays judgment for the balance between the credits and debits set out, said balance being $529.09, and for interest thereon, together with costs.

The defendant filed an answer and counterclaim. The answer was a general denial, and the counterclaim alleged that a written contract had been entered into between the plaintiff and defendant for the construction of certain brick portions of a building belonging to the defendant, which the defendant desired to have remodeled; that the plaintiff undertook to and did actually perform a part of the work called for in said contract, but that by reason of the improper and unskillful work done by the plaintiff in the construction of the east wall of the building in question, the said wall was condemned by the city authorities before it was completed; that plaintiff thereupon abandoned the work on said building, and refused to complete the same, thus leaving the building in an unfinished and incomplete condition; that by reason of the abandonment of the work and refusal of the plaintiff to complete the same, the defendant was required to tear down a portion of the said wall and reconstruct the same, and that defendant was required to contract with a third party to complete the work, thereby incurring additional expense, which is set out and itemized, together with other minor items, in an account attached thereto, the various items aggregating $1,342.70, for all of which the defendant alleges he is damaged, etc., and prays judgment therefor as against the plaintiff. Plaintiff's answer to the counterclaim was conventional.

It is not necessary to set out all the testimony adduced in the case. For the purposes of this appeal it is sufficient to say that there was a written contract entered into between the plaintiff and defendant, whereby the plaintiff agreed to do certain work for the defendant in the reconstruction of the defendant's building, including, among other things, the brickwork of the walls of the building; that the contract price for the labor and material to be furnished was $1,200. During the course of the reconstruction misunderstandings and difficulties arose between the parties. There is no controversy but that the east wall of the building in question, while said wall was being constructed by the plaintiff under the contract with the defendant, and before said wall was completed, was found to be out of plumb and to be leaning inward about 3 inches; that the city authorities in due course condemned the wall and ordered it reconstructed from the second floor sill to the roof. The defendant thereupon sought to have the plaintiff tear down the condemned portion of the wall and reconstruct it without cost to the defendant. This the plaintiff refused to do.

As to the cause of the wall being out of plumb and as to the responsibility therefor, the plaintiff adduced testimony which tended to prove that on Friday, February 21, 1912, a snowstorm came up, and that the bricklayers of the plaintiff, who were working upon the east wall, thereupon stopped their work; that no further work was done upon the wall from the time the bricklayers quit on said Friday until the following Monday morning, due to the fact that the intervening Saturday, February 22d, was a holiday; that the east wall, at the time the bricklayers quit on Friday, was within a few feet of the roof line; that it was perfectly plumb, and that the wall was sufficiently braced to prevent its sagging or becoming out of plumb; that when the bricklayers returned on the following Monday morning, prepared to finish the wall, the bulge or leaning of the wall was discovered, as was also the fact that the braces securing the wall, which had been left in place on the previous Friday, had been removed in the meantime, but not by any order of the plaintiff nor by any one in his employ. Plaintiff himself on this point testified that:

"When I got there on Monday, the following Monday, to proceed with the work, to complete it, by throwing my line from one end to the other, I found that the wall had come in about 3½ inches inwards. * * * It was caused by the carpenters on the building removing the braces, which were put there purposely to hold the wall in position until the wall was properly secured and anchored to the rafters. * * * After I noticed this curve had taken place, when I intended to start to work, I stopped my men from going ahead until I called Mr. Bang's attention to this defect in this work. After explaining to Mr. Bang the cause of it, he refused to listen to it, and he claimed that it was defective work done by my bricklayers; built that way. That was the only satisfaction I ever got from Mr. Bang. Q. Did you ever have any exchange of letters with him on the matter at all? A. I did, sir. The letters are as follows:

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