John O'Brien Boiler Works Co. v. Sievert

• Decision Date: 04 December 1923
• Docket Number: No. 18412.,18412.
• Parties: JOHN O'BRIEN BOILER WORKS CO. v. SIEVERT et al.
• Court: Missouri Court of Appeals

256 S.W. 555

JOHN O'BRIEN BOILER WORKS CO. v. SIEVERT et al.

No. 18412.

St. Louis Court of Appeals, Missouri.

December 4, 1923.

Appeal from Circuit Court, Audrain County; E. S. Gantt, Judge.

"Not to be officially published."

Action by the John O'Brien Boiler Works Company against August F. Sievert, Charles H. Wild, and the Bank of Warren County. Judgment for plaintiff. From an order sustaining defendant's motion for a new trial, plaintiff appeals. Order granting defendant new trial affirmed, and cause remanded.

Leahy, Saunders & Walther, of St. Louis, B. E. Dyer, of St. Charles, and A. C. Whitson, of Mexico, Mo., for appellant.

Emil Roehrig, of Warrenton, and Frank Hollingsworth, of Mexico, Mo., for respondents.

SUTTON, C.

This is a suit upon quantum meruit for the reasonable value of materials furnished and labor performed in the repairing of a boiler belonging to defendant Sievert, located at his electric light plant at Warrenton, and to have the claim declared a lien upon the boiler, plant, and premises. The defendants Wild and Bank of Warren County were respectively trustee and cestui que trust in a deed of trust covering the property, and were on this account made parties to the suit.

The petition alleged that the plaintiff was engaged in doing a general boiler making and repair business; that the defendant Sievert contracted with and employed plaintiff to furnish the materials and labor necessary to patch defendant's boiler, and promised and agreed to pay plaintiff whatever said materials and work so contracted for were reasonably worth; and that, pursuant to said employment, plaintiff furnished the materials and labor for the patching of said boiler in a good, workmanlike order and manner. The petition then set out a schedule of the work done and materials furnished, and the reasonable value thereof. The reasonable value of the work and materials, including an item of $21.30 for traveling expenses of workmen, was alleged to be $370.18, and it was alleged that the defendant was entitled to a credit of $72.78 for payments made. The petition concludes with a prayer that judgment be given against defendant Sievert for the balance of $297.40, with interest from August 18, 1918, and that the same be charged as a lien against the property. The answer of defendant Sievert was a general denial, with an allegation that the work done by plaintiff was worthless and of no use or benefit to defendant. The other defendants did not answer.

The plaintiff's evidence showed that the plaintiff was a manufacturer and repairer of boilers, with its principal office and place of business in the city of St. Louis; that, on application of defendant Sievert, the plaintiff was employed by defendant to put a patch on his boiler located at his electric light plant at Warrenton, and used in the operation of the light plant; that it was agreed between the parties that the plaintiff would undertake the work, furnishing the material and labor necessary therefor, and that the defendant would pay for the work at the rate of $1.10 per hour for boiler makers and 80 cents per hour for helpers, and would pay the reasonable value of material furnished by plaintiff, and, in addition to this, pay the traveling expenses of the workmen; that, pursuant to this agreement, plaintiff sent to Warrenton from St. Louis a crew of two boiler makers and two helpers, in charge of a foreman, who was also a boiler maker, to make the repairs agreed upon; that the repairs were made by these men in a skillful and workmanlike manner; that the work was begun on Tuesday and concluded on Saturday night; that the boiler makers worked in the aggregate 157 hours, for which a charge of $172.70 was made; that the helpers worked in the aggregate 148 hours, for which a charge of 131:8.40 was made; that the 305 hours worked and charged for, as aforesaid, is made up of 233 hours actually worked and 72 hours added for overtime, arrived at by charging double time for overtime; that plaintiff furnished a steel plate, some rivets and some bolts, for which a charge of $57.78 was made; that traveling expenses of the workmen amounted to $21.30; that the defendant, shortly after the work was finished, paid for the material furnished by plaintiff $57.78, and $15 on traveling expenses, leaving a balance due plaintiff of $297.40, and that defendant also paid for the hotel accommodations of the workmen while in Warrenton. Defendant introduced evidence tending to show that it was agreed between the plaintiff and defendant that the plaintiff would so repair and patch the boiler that it would withstand 150 pounds of hydrostatic pressure and 100 pounds of working pressure; that the labor was to be paid for by the hour at the rate of $1.10 per hour for the boiler makers and 80 cents per hour for the helpers; that defendant was to pay the reasonable value of the materials furnished and traveling expenses of the workmen; that the maximum cost, however, was not to exceed $280; that plaintiff said the materials would cost about $30; that the men who did the work of repairing the boiler did not progress with the work like they should; that they did not put in time as men usually do on a job of that kind; that he complained of this to the foreman; that the work was not done in a skillful or workmanlike manner; that, by reason of this, the work was unsuccessful and worthless; that the patch was not properly or skillfully calked and beveled; that the rivets were not properly spaced or pitched; that they were uneven, and in places too far away from the edge of the patch; that there was leakage around the patch even under low pressure, and the patch would not withstand sufficient pressure for the operation of the boiler; and that no use could be made of the boiler after it was patched, though it was in use before it was patched.

The jury found for the plaintiff and assessed the amount of Its recovery at $250. The court sustained defendant's motion for a new trial, and ordered that a new trial be granted defendant. From this order the plaintiff appeals.

One of the grounds assigned by the court for...