Johnson v. Girvin's Estate

• Decision Date: 13 August 1963
• Docket Number: No. 8186,8186
• Citation: Johnson v. Girvin's Estate, 370 S.W.2d 163 (Mo. App. 1963)
• Parties: Henry A. JOHNSON, d/b/a Johnson Sheet Metal Works, Plaintiff-Respondent, v. ESTATE of John L. GIRVIN, Deceased, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 163

370 S.W.2d 163

Henry A. JOHNSON, d/b/a Johnson Sheet Metal Works Plaintiff-Respondent, v. ESTATE of John L. GIRVIN, Deceased, Defendant-Appellant.

No. 8186.

Springfield Court of Appeals, Missouri.

Aug. 13, 1963.

Walker & Young, Web A. Welker, Linus E. Young, Portageville, for defendant-appellant.

J. H. Spears, West Memphis, Ark., Hal E. Hunter, Jr., New Madrid, for plaintiff-respondent.

RUARK, Presiding Judge.

This is an appeal from a judgment involving a claim by Henry A. Johnson, d/b/a Johnson Sheet Metal Works (whom we shall hereafter refer to as plaintiff), against the Estate of John L. Girvin (which will be referred to as defendant).

Plaintiff filed a claim in probate court on a date not shown, but evidently prior to June 19, 1961, because on that day change of venue was filed; and the case was subsequently tried in the circuit court. The claim is for 'the sum of $9124.80 on account of labor and materials furnished.' It states that an itemized statement of such claim showing dates and amounts is attached, but no such itemized statement was filed.

The defendant filed its combined answer and counterclaim wherein, after a general denial and plea for discharge, defendant charges that in the summer of 1960 deceased John L. Girvin entered into a verbal contract with plaintiff whereby, for the sum of $5800, plaintiff was to furnish labor and materials to construct an incinerator upon the premises of Girvin's gin; that plaintiff 'guaranteed that the incinerator would automatically burn cotton hulls, refuse from the cotton gin, and refuse from the soybean elevator, as it was blown into the incinerator, and that if it didn't work it was his 'baby"; that the incinerator was built but was not well-made or free from defects and would not automatically burn the refuse aforementioned; that because of such defendant had been required to expend the sum of $1,342.21 for labor and oil to burn the refuse, for which amount defendant prayed judgment. The pleading aforesaid further stated that deceased had contracted for plaintiff to do certain pipe work at the gin for the sum of $1,334.20; that $367.80 had been paid on that account; and that there remained the sum of $966.40 in dispute.

From the standpoint of the plaintiff, the case involves three separate items: (a) $1,334.20 for piping and duct work done on defendant's cotton gin. (b) $5,867.80 ($5800 as finally submitted to the jury) for the construction of what has been variously referred to as a hull burner, incinerator, or refuse burner to be operated in conjunction with defendant's gin. This claim was based on express contract. (c) $1,922.80 for the construction of a mote burner to be operated in conjunction with the hull burner abovementioned. This was apparently based upon quantum meruit.

From the defendant's standpoint the dispute combines (b) and (c). It was defendant's contention that the mote burner was built by the plaintiff as a part of his effort to make good on the contract to build an incinerator which would automatically burn the refuse from the gin.

As to (a), the pipe work, there is no dispute. It is admitted that the sum of $1,334.20 was due for the work performed. It is also agreed that defendant advanced the sum of $367.80. We think it fair to state that the evidence shows this sum should go to the credit of the pipe work item, although the parties sometimes confuse matters by referring to it as a credit on the incinerator.

The main dispute in the evidence is whether the incinerator and mote burner worked. Defendant contends neither worked. Plaintiff contends that both of them, when correctly operated, did perform the function they were intended to perform.

Here, for a better understanding of some of the things involved, we think we should digress a little in order to discuss 'motes.' They are probably not those mentioned in Luke 6:41-42, since they appear to be a by-product caused in the operation of the new type of lint cleaner. The lint cleaner takes the fuzz off the cotton. As plaintiff explained it, it 'doesn't come from the ginsaw, where the hulls and trash and stuff goes to the hull burner.' The motes are a very light fuzz which 'is lighter than air.'

According to the testimony of plaintiff's son, who made the deal with Girvin, the deceased, plaintiff had just completed doing some pipe work for the Girvin gin and then negotiated the building of a hull burner. Witness and Girvin discussed the type and details of the contemplated burner. Girvin preferred a certain type of burner and plaintiff agreed to build it for the price and sum of $5800 plus tax.

'A. Well, at the time I sold the burner--it was the understanding that if Mr. Girvin wanted a screen on the burner that I would put it on there free of charge, but I told him them screens stopped up with that lint cotton and also told him that there was going to be a certain amount of this light fuzzy--fuzz--it is lighter than air, and ain't nothing but gunpowder and fzzzt, and floats for miles and miles and miles before it goes down. So, I agreed to put this screen on there if that was what he recommended, after he started ginning. Well, there was a disagreement on the height of the burner, so I come back down here and my brother was installing this burner. I went into Mr. Girvin's office, me and my brother, and I told Mr. Girvin I didn't mind putting another ten foot on the burner. It cost us about twelve hundred dollars. I didn't mind that, but if he wanted the screen or anything else on the burner that it would be to his expense. He agreed to that. So, we went to work and built the burner higher like he wanted it.

'Q. And what was the trouble with it that he wanted it higher?

'A. Well, he said his smoke was getting in the gin.

'Q. Did you build it up to the height that he wanted it?

'A. Yes, sir.

'Q. And at whose expense was that?

'A. It was ours.'

He said that after the incinerator, with its increased height, was completed, Girvin told him, "Stop the motes from coming out of the top of that burner and I will give you a check in full." So, he built the mote burner. They never discussed the reasonableness of the charge ($1,922.80) for building the mote burner. 'He just ordered it.' He said that right after he built the mote burner Girvin got sick and went to the hospital. Girvin died December 2, 1960.

There was considerable evidence on the part of the defendant that the incinerator would not burn the hulls and other refuse and the mote burner would not burn the motes. The evidence indicates that defendant purchased a burner of different type the following year. Plaintiff's evidence on the other hand was that, when the burners were lighted and the valves properly adjusted for the load and type of work to be performed, they both worked and functioned correctly. It would serve no purpose to go into detail about this. The jury evidently believed the plaintiff, and there was sufficient evidence upon which such finding could be made.

Plaintiff's Instruction No. 1 stated that it was admitted that plaintiff and defendant contracted for the construction of an incinerator to burn cotton hulls and other refuse from the gin and bean elevator; and if the jury found that plaintiff did perform according to the terms of the contract and if the incinerator was not defective and did perform the function it was intended to perform according to the terms of the contract, then plaintiff should have verdict for $5800, less any sums the jury might find to have been paid on the contract.

Plaintiff's Instruction No. 2 was on the theory of a contract price of $1,334.20 for the pipe work (the item which is not in dispute) less any sums paid on such contract price.

Plaintiff's Instruction No. 3 was as follows:

'The Court instructs the jury that if you find from the evidence that at the instance and request of defendant, John L. Girvin, plaintiff furnished all labor and materials for the construction of a motes burner for the Farmers District Gin in Portageville, Mo. and that if you further find that the defendant was the owner of the Farmers District Gin in Portageville, Missouri, then your verdict shall be for plaintiff in such sums, if any, as you find are due plaintiff for such labor and materials furnished in the construction of said motes burner, if you further find that said motes burner was constructed by plaintiff, and if you further find that said motes burner performed the function of burning the motes as it was intended as defined in other instructions herein given to you.'

Defendant's Instruction No. 5 was based on the premise that if plaintiff agreed to sell and construct an incinerator which would automatically burn the cotton hulls and other refuse from the gin and refuse from the bean elevator and further agreed if it didn't work the incinerator would remain the property of plaintiff, and if it did not so perform such work, then plaintiff could not recover therefor.

Defendant's Instruction No. 6 told the jury that if the incinerator did not work and defendant was compelled to expend $1,342.01 in order to dispose of the cotton hulls and refuse from the gin and soybean elevator, then defendant should have verdict on his counterclaim in the sum so expended, less the sum of $966.40, the amount admittedly due on account of the pipe work.

The verdict...