Kaiser v. Lyon Metal Products, Inc.
| Decision Date | 05 October 1970 |
| Docket Number | No. 25337,25337 |
| Citation | 461 S.W.2d 893 |
| Parties | William F. KAISER, d/b/a Kaiser Erection Company, Respondent, v. LYON METAL PRODUCTS, INCORPORATED, a Corporation, Appellant. |
| Court | Missouri Court of Appeals |
David H. Clark, Robert E. Northrip, Kansas City, for appellant; Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel.
Walter A. Raymond, Raymond, West & Mason, Kansas City, for respondent.
MAUGHMER, Commissioner.
This is a suit by a sub-subcontractor against a subcontractor to recover in quantum meruit for 'extra work' necessarily and authorizedly done by him in the completion of his written contract to assemble and install lockers, wardrobe cabinets, bookcase units and similar items in ten military barracks buildings at Fort Carson, Colorado. Plaintiff had the verdict and judgment for $13,500.00, and defendant has appealed.
Hensel Phelps Company was the prime contractor on the Fort Carson job, but it is not directly involved in this litigation. The defendant Lyon Metal Products, Incorporated, is a corporation engaged in the business of 'contracting for and furnishing manufactured material for installation of lockers, wardrobe cabinets, bookcase units, etc. in public buildings, industrial plants, army barracks and warehouses.' Defendant had the subcontract to supply and install the lockers, wardrobe cabinets and bookcase units in the Fort Carson barracks.
Defendant first subcontracted the work of assembling and installing these fixtures to the Holm Heating and Sheet Metal Company. However, Holm's progress on the job and quality of work were unsatisfactory, or else Holm became disenchanted with the project. In any case, apparently to the satisfaction of both parties, Holm surrendered its contract and withdrew. Holm is not involved in this lawsuit and is mentioned only to tell the story in full.
The plaintiff William F. Kaiser d/b/a Kaiser Erection Company, is a sheet metal contractor specializing in the installation of lockers, toilet partitions, bookcase units and the like. In the latter part of May, 1966, at the specific request of defendant's Kansas City district sales manager, Mr. Richard 'Dick' Brown, Mr. Kaiser sent two of his supervisory employees (Fred Eshelman and Carl Darby) to Fort Carson to aid to Holm Company on this project with which it was having difficulty. For two weeks Mr. Eshelman and Mr. Darby worked for Holm and then surveyed the job with respect to Holm's subcontract. Their findings were submitted to Mr. Kaiser who apparently had been approached by defendant regarding a take-over of the Holm subcontract. On June 3, 1966, defendant entered into a written contract with plaintiff under which plaintiff, for the sum of $62,000.00, agreed in part to 'unload, distribute, erect, install locks, adjust doors and equipment in place * * * touch up all mars and scratches and dispose of all crates, boxes and packing', as to the lockers, wardrobe cabinets and bookcase units which, under government specifications, were to be installed at Fort Carson. These items were specifically identified by reference in the contract to numerous numbered erection orders, and totaled 310 wardrobes and 240 bookcase units for each of the ten barracks.
Four witnesses testified on behalf of plaintiff, namely, Mr. Fred Eshelman, who was foreman on the job from June 6, 1966 until November 22, 1966; Mr. John C. Swartz, who was foreman from November 22, 1966 until completion in March, 1967; the plaintiff Mr. William F. Kaiser; and Mr. Richard E. Brown, defendant's sales manager, who was called as an adverse witness.
A written computation containing fifteen separate items of alleged 'extra work', and listing the number of hours expended on each item, together with the charge per hour, was submitted to defendant by plaintiff early in 1967. This list was prepared by Mr. Kaiser and Mr. Swartz in March, 1967, and was based upon estimates made by Mr. Swartz, which he said he made in November, 1966, by watching the doing of one job in each category, timing it with his watch, and then multiplying the hours consumed by the number of jobs. We set forth the full computation.
'LISTING OF MAN HOURS REQUIRED TO COMPLETE ADDITIONAL WORK CAUSED BY IMPERFECTIONS IN BUILDING STRUCTURES NOT COVERED BY CONTRACT.
HOURS DESCRIPTION OF WORK PREFORMED.
42 Removing angles from vertical columns installed by others in NCO rooms so lockers could sit flush in column to wall corners.
180 Removing concrete excess at base of columns in Squad and NCO rooms. Concrete excess at base of column would not allow cabinets to sit flush to column.
210 Trimming and fitting top closurers to unevenly poured ceilings and still hold trim square with cabinet.
226 Sanding, cleaning and painting of material stored on ground that was used in bldgs A--6 A--7. This material was stored on ground because contractor did not have buildings ready to receive it at time of delivery. It had to be brought back to new condition or replaced.
430 Distributing, cutting shims and shimming all cabinets above normal to level cabinets so door operation would work. Shimming required in many cases up to 1 1/4 above floor level.
(NOTE: Due to the unlevel conditions of the floors, the contractor was required to chip out and refill the floors at the uneven and obvious spots. All of the regrinding of the floors after chipping and filling was preformed after the lockers were built, set & anchored and trimmed. This caused an extreme amount of dirt on the inside of the lockers and the contractor Back-Charged Kaiser for the cleaning.
396 Miving of material between buildings to replace damaged items or items that were short in original building shipments.
52 Sorting, accumulate and moving damaged material to central location on job for trucking claims agent to check and dispose of.
48 Prepare materials in bldgs A--9 & A--10 so final inventory as to shortages could be taken.
40 Count and recount material on hand to determine material to be ordered to allow completion of project.
24 Picking up paint at Railway Express and taking to Sherman-Williams for placing in spary cans. Picking spray cans up after they were finished and bringing to job for touch up work.
180 Cutting, distributing and nailing of wood strips to reinforce M & M1 fillers to A&B wardrobes. 4 various size strips required for each group of 2 lockers.
120 Cutting and trimming M & M1 fillers from 35 1/2 to 34 1/2 to top of bookcases.
365 Filling, sanding and repairing of dents and damage to side panels doors and other exposed areas that did not warrant replacing with new material.
24 Cutting, bending and building of 16 pcs. of material after final shortage material was received that still was required to complete project.
20 Inventory and haul excess of material after project was complete.
2357 Man Hours of Labor by Sheet Metal Workers
589 Man hours of Supervision
Sheet
Metal Supervision
Hourly Rate 4.55 5.10
A.F.H. Pay --- 1.57
9.3% Tax, Ins. . 423 .474
Fringe Benefit .17 .312
----- -----------
5.143 7.456
Overhead 10% .52 .75
Profit 15% .84 1.23
----- -----------
6.50 9.43
2357 Man Hours at 6.50 per hour 15,320.50
589 Man Hours at 9.43 per hour 5,554.77
----------
20,874.77"
The jury's verdict was for $13,500.00, or approximately two-thirds of the amount claimed ($20,874.77). We do not, of course, know whether the jury disallowed some of the items entirely, reduced the hours total, or allowed a lesser charge per hour.
The witnesses Eshelman and Swartz, and the plaintiff Mr. Kaiser, each described the existing conditions which they said necessitated this extra work. They said that concrete had been spill on the floors and it was necessary to remove it; that the floors and ceilings were not plumb, which required 'shoring up', that the materials were sent by 'railway, two or three trailers on what they call piggyback and they were transported to the job site by tractors.' It was their testimony that the material did not arrive on schedule, that they were often required to store it in one barracks building and then move it to another when the construction had progressed to such point that it could be utilized. They testified that on occasion it was necessary to stort part of these units outside on the ground, and this required laying a floor of four by fours, with a top covering of tar paper, that much of the material was damaged from either improper handling or from the elements and was sometimes rusty, and required repainting or refinishing. They said that in order to fit the cabinets and lockers squarely and evenly against these uneven ceilings and floors it was necessary to install angle irons.
Both Mr. Eshelman and Mr. Swartz, supervisors on the job, said the government engineers were telling them 'to do this and to do that' and get the barracks done. Mr. Eshelman said that Mr. Clint Peterson, defendant's Denver representative, told him, 'Damn it, Fred, do anything you have to do to get these people satisfied.' Mr. Kaiser said he too, discussed the matter with Mr. Peterson, and was told, With respect to replacing material that had been damaged through storage on the ground or otherwise, plaintiff said that Mr. Brown, the defendant's supervisor on the job, told him to 'Use everything possible--refinish and repaint' and said that 'We would be taken care of, that it was a thing that had to be in order to sell the job.' Mr. Swartz, the plaintiff's supervisor during the latter part of the work, said that he discussed the difficulties that required this extra work, with Mr. Brown on occasions, and also with Mr. Al Corredor of the Lyon office, and they assured him to go ahead and do whatever was necessary and that they would be taken care of. These three plaintiff's witnesses also testified that the defects in...
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