Johnston v. Star Bucket Pump Company

• Decision Date: 27 April 1918
• Parties: PHILIP G. JOHNSTON et al. v. STAR BUCKET PUMP COMPANY, Appellant
• Court: Missouri Supreme Court

202 S.W. 1143

274 Mo. 414

PHILIP G. JOHNSTON et al. v. STAR BUCKET PUMP COMPANY, Appellant

Supreme Court of Missouri

April 27, 1918

Appeal from St. Louis City Circuit Court. -- Hon. Wilson A. Taylor Judge.

Affirmed.

Kinealy & Kinealy for appellant.

(1) Even if defendant's counterclaim be disregarded entirely it was gross error to give plaintiff a judgment when, with all liabilities paid, he had in his pocket more than he would have made had he completed the contract. Drainage Dist v. Surety Co., 252 Mo. 565; Moore v. Gauss & Sons Mfg. Co., 113 Mo. 98; Harrison v. Franklin, 126 Mo.App. 366; Mitchell Pl. M. Co. v. Allison, 138 Mo. 50; Bean v. Miller, 69 Mo. 384; Berthold v. Elect. Con. Co., 165 Mo. 280; Lazar Mfg. Co. v. Pelligreen C. & I. Co., 179 Mo.App. 447; Halpin v. Monny, 57 Mo.App. 59. (2) And if plaintiff were entitled to a judgment it was error: (a) To fix the reasonable value of the work regardless of his contract, sub-contracts, and monthly estimates, which latter were sworn to by him as being the reasonable value of the work. Steele v. Railroad, 265 Mo. 97; Shirts v. Overjohn, 60 Mo. 305. (b) To refuse to charge him with amounts which defendant paid to subcontractors for work done on the building. (3) It was error to render judgment in favor of plaintiff and against defendant on its counterclaim, because: (a) The ground alleged by plaintiff for attempting to rescind the contract, non-payment of the May estimate, did not justify his abandonment of the work and suing on the theory that he was prevented from performing the contract. Laswell v. Handle Co., 147 Mo.App. 497; Fitzgerald v. Haywood, 50 Mo. 516; Puckett v. Nat. Ann. Assn., 134 Mo.App. 501; Turner v. Mellier, 59 Mo. 526; Coal Co. v. Freund P. & M. Co., 138 Mo.App. 274; Daley v. Carthage, 143 Mo.App. 564. And he is restricted to the reasons he assigned at the time. Railway v. McCarthy, 96 U.S. 258; Goodman v. Purnell, 109 C. C. A. 408; McDonald v. Hooker, 57 Ark. 638; Davis v. Dix, 64 F. 411; Ins. Co. v. Burman, 141 F. 842; Gibson v. Brown, 214 Ill. 341; Railroad v. Seitz, 214 Ill. 356; Farmers M. Co. v. Ins. Co., 127 Iowa 318; Sandefur v. Hines, 69 Kan. 171; Wallace v. Minn. Ele. Co., 37 Minn. 465; Frenzer v. Dufrene, 58 Neb. 436; Wyatt v. Henderson, 31 Ore. 55; Harris v. Chipman, 9 Utah, 105; Wright v. Land Co., 100 Wis. 269. (b) There being unpaid lienable claims against the building, defendant had the right under the contract to withhold payment of the estimate. Casey v. Gunn, 29 Mo.App. 14; Dempsey v. Schawacker, 140 Mo. 680. (c) The architect being made the arbiter by the contract and having decided that plaintiff violated the contract and specifications that decision is binding on him. Williams v. Railway, 112 Mo. 463, 153 Mo. 487; Thompson v. St. Charles Co., 227 Mo. 220. (d) The weight of the evidence is that plaintiff did not live up to the specifications (e) The architect did not consent to a deviation from the specifications and had no power to do so. 6 Cyc. 29, tit. Builders & Architects; 2 Am. & Eng. Ency. Law (2 Ed.), p. 820; Flesh v. Christopher, 11 Mo.App. 483; Fitzgerald v. Moran, 141 N. J. 149; Adlers v. Muldoon, 45 Ill. 193; Salisbury v. St. Charles, 154 Ill.App. 531; Bond v. Newark, 19 N.J.Eq. 376; Glacius v. Black, 50 N.Y. 145. (f) There was no waiver or estoppel on the part of the architect because he had no knowledge of the faulty mortar until he made the final examination. Actual knowledge is necessary for estoppel or waiver. Tennent v. Ins. Co., 133 Mo.App. 345; Johnson Co. v. Lowe, 72 Mo. 637; Mantel Co. v. Thaler, 133 Mo.App. 86; St. Joseph v. Dillon, 61 Mo.App. 317; Lack v. Brecht, 166 Mo. 242. (g) The contract specifically provides that the architect may condemn material "worked or unworked" and that the contractor will "take down" all work condemned by the architect. Plaintiff cannot be heard to say the contract is too hard. Railway v. Stone Company, 90 Mo.App. 171. (4) Defendant on its counterclaim is entitled to recover all the damage it has suffered and expenses it has been put to growing out of plaintiff's breach of his contract. 13 Cyc. 156, tit. Damages; Norman v. Vandenberg, 157 Mo.App. 488. This includes damages for delay in completion at the rate contracted for. Dengler v. Auer, Mo.App. 548; Cochran v. Railway, 113 Mo. 359; Thompson v. St. Charles County, 227 Mo. 220. Attorney's fees and expenses of litigation are also proper items of damages. Dempsey v. Schawacker, 140 Mo. 689; State ex rel. v. Tittman, 134 Mo. 162; Coleman v. Clark, 80 Mo.App. 339; Hazlett v. Woodruff, 150 Mo. 534. (5) Although this court has recently decided (St. Louis v. Parker-Washington Co., 196 S.W. 767) that, in actions at law compulsorily referred, this court will not review the findings of fact by the trial court if those findings are supported by substantial evidence and that court has not abused its discretion. that principle does not apply here, because: (a) The reply attacks the decision and certificate of the architect because of alleged fraudulent conduct on his part, and prays that his decision and certificate be set aside and for naught held. The whole action has thereby been converted into an equitable proceeding in which this court makes its own finding of the facts. Edwardson v. Garnhart, 56 Mo. 81; Williams v. Railway, 153 Mo. 495; Vandagrift v. Masonic Home, 242 Mo. 154; Sonnenfeld v. Rosenthal, 247 Mo. 250; Reed v. Young, 248 Mo. 613; State ex. inf. v. Lumber Co., 260 Mo. 274. (b) The court did not exercise a reasonable discretion in rendering the judgment in this case. Such facts as it did find were found against the great preponderance of the evidence, it ignored controlling admissions and facts, and it evidently misconstrued the contract between the parties.

S. C. Taylor for respondent.

(1) The findings of the referee stand before the appellate court in the nature of a special verdict, and if they are supported by substantial evidence the court will not disturb the same. Ferry Co. v. Railroad Co., 73 Mo. 419; Berthold v. O'Hara, 121 Mo. 97; Bank v. Donnell, 172 Mo. 402; State ex rel. v. Fidelity Co., 236 Mo. 375. (2) Failure on the part of an owner to pay an installment due under the terms of the contract, the unwarranted and illegal condemnation of a large portion of the work on the building which had been constructed according to plans and specifications, and the refusal of the owner to permit the contractor to proceed with the work constitute a breach of the contract and authorize the builder to rescind the same. Little v. Mercer, 9 Mo. 218; Bean v. Miller, 69 Mo. 384; Berthold v. Construction Co., 165 Mo. 303; American Co. v. Butler, 165 Cal. 497; Scheible v. Klein, 89 Mich. 376; Harton v. Hildebrand, 230 Pa. 335; Canal Co. v. Gordon, 73 U.S. 561; Construction Co. v. Seymour, 91 U.S. 646. (3) When an owner is guilty of a breach of the building contract after a part of the work has been done and before it is entirely completed, the contractor may rescind the contract and sue for the reasonable value of the work and labor performed and materials furnished by him under the contract, and his recovery is not limited to a pro rata part of the contract price. McCullough v. Baker, 47 Mo. 401; Ehrlich v. Ins. Co., 88 Mo. 249; Ahern v. Boyce, 19 Mo.App. 552; Kelly v. Rowane, 33 Mo.App. 440; Smith v. Keith, 36 Mo.App. 567; Dempsey v. Lawson, 76 Mo.App. 522; Cann v. Rector, 111 Mo.App. 164; Motor Car Co. v. Kast, 171 Mo.App. 309; United States v. Behan, 110 U.S. 338; Connell v. Higgins, 170 Cal. 541; Adams v. Burbank, 103 Cal. 646; Cochran v. Balfe, 12 Colo.App. 75; Waitkus v. Olszewski, 189 Ill.App. 332; Waggeman v. Janssen, 74 Ill.App. 38; Folkner v. Purl, 1 Ind. 489; Powers v. Hogan, 12 Daily (N. Y.) 444; North v. Hovey, 26 Vt. 109. (4) Where an architect abdicates his office of arbiter between parties to a contract and acts in collusion with oue of the parties and is manifestly unjust, unfair and oppressive his decisions are not binding upon the other party. Lime Co. v. Shores, 105 Wis. 122; Elevator Co. v. Clark, 80 F. 705.

GRAVES, C. J. Williams, J., concurs; Faris, J., concurs in result; Blair, J., concurs in separate opinion, in which Graves, C. J., and Williams, J., concur; Bond, J., dissents in a separate opinion, in which Walker and Woodson, JJ., concur.

OPINION

In Banc.

GRAVES C. J.

Plaintiff, a contractor and builder, sues the defendant in quantum meruit, for the reasonable value of labor and materials furnished in the construction of a three-story brick building in the city of St. Louis. The petition states a simple action in quantum meruit. In the petition is a full itemized statement of account between the parties, showing the items of labor and materials furnished, and the payments made to plaintiff by the defendant. Such petition asks judgment for the balance of $ 12,920.68, with interest thereon from June 9, 1911, and that the plaintiff have adjudged a mechanic's lien on the house and lot involved therein. The petition avers the statutory steps for this statutory lien.

To this petition the defendant filed answer and counterclaim. The answer is (1) a general denial, with which is coupled an admission that defendant did contract with plaintiff to furnish the labor and material for its building and that plaintiff did certain work thereupon, and (2) a plea of payment. These two portions of the answer are in fact a general denial and a plea of payment.

The defendant then pleads a written contract with plaintiff detailing with particularity many of the provisions thereof. The answer then avers that the plaintiff breached the contract (stating particulars) and that by reason of the breach of the contract by plaintiff the defendant had been damaged in the sum of $ 5908, for which defendant asked...