Kalen v. Steele
| Decision Date | 05 December 1960 |
| Docket Number | No. 23187,23187 |
| Citation | 341 S.W.2d 343 |
| Parties | Robert L. KALEN et al., Appellants, v. Roland P. STEELE, d/b/a Better Built Homes, Inc., and Better Built Homes, Inc., a Corporation, Respondents. |
| Court | Missouri Court of Appeals |
Robert S. Burns, Kansas City, for appellants.
Roland P. Steele, pro se.
Plaintiffs, Mr. and Mrs. Robert L. Kalen, sue defendants, Roland Steele, an individual, and Better Built Homes, Inc., a corporation, housebuilders, alleging in their petition that on October 3, 1957, plaintiffs and defendants entered into a written agreement by which defendants agreed to build a described home for plaintiffs on plaintiffs' lot for a total construction cost of $15,993.30 plus a contractor's fee of $1,599.93, for a total cost of $17,593.23; that defendants partially performed the work so that plaintiffs were able to occupy the house but have wrongfully refused to complete many listed items of work covered by the contract. Additionally, plaintiffs' petition states that although plaintiffs have paid defendants all that is owed them under the contract, defendants have presented bills to plaintiffs as construction costs of the house totalling $23,208.91; that of this sum $654.49 was for authorized extras over and above the original contract price of $15,993.30, leaving a balance of $6,561.12 in cost of construction above the original contract price; that the bills for this $6,561.12 for labor and materials remain unpaid, and that mechanics' liens therefor have been filed. Plaintiffs seek damages for these matters in the sum of $7,161.12.
In their answer defendants denied all this and counterclaimed for $312.59 which they allege is 10% of the amount of agreed extras and is thus owed as additional contractor's fee under the terms of the contract.
The case was tried to the jury. Plaintiffs' evidence was to the following effect: They learned of defendants Steele, a housebuilder, and his company through advertisements in the newspaper. Plaintiffs had a rough sketch of the house they wanted built. They contacted Mr. Steele, discussed the proposed house, its cost and the types of materials to be used in building it with him. He told them that to give them a positive contract figure he would have to have the plans drawn up by an architect. Mr. Steele then suggested plaintiffs employ a Mrs. Peters, an architect he knew, and stated that if he was presented definite plans he could give plaintiffs a definite figure that would be the price of the house. With Mr. Steele frequently present to aid and advise, Mrs. Peters drew the house plans, a copy of which was given to Mr. Steele.
On October 3, 1957, Mr. Steele presented them with a contract to which was attached a blue print copy of the house plans mentioned and a cost sheet or a list of the cost of the items and labor necessary to construct the house. These documents were introduced in evidence. Plaintiffs considered all three documents together to be the contract. Plaintiffs had never seen the contract or cost sheet before. Without objection Mrs. Kalen testified: Plaintiffs carefully examined the contract and the attached plans and cost sheet, and signed the contract.
Contending that the contract called for a fixed total price of $17,593.23 plaintiffs caused that sum to be paid to defendants, plus an additional $654.49 in 'extras' authorized by plaintiffs. However, defendants presented to plaintiffs an additional $6,561.12 in construction costs as unpaid. At the close of plaintiffs' evidence this figure was amended by defendants' counsel to $4,191.51.
According to plaintiffs' evidence, mechanics' liens were filed against the real estate for this added sum. Plaintiffs asked defendants to pay the $4,191.51 but defendants refused to do so. Plaintiffs had paid $3,283.58 on these liens at the time of trial. Plaintiffs moved into the house on January 25, 1958. They incurred an additional $969.72 in expenses for items and work they claim it was defendants' obligation to have furnished under the contract. These included such things as putting in some drain tile, some guttering, ornamental iron work, a short sidewalk, seeding, sodding and landscaping.
Plaintiffs also adduced evidence that they had deposited a sum of money in escrow to pay certain of the building costs and that defendants had so drawn on that account as to use up $582.87 to which defendants were not entitled under the contract and the prices it established for the items involved.
At the close of plaintiffs' evidence defendants filed a 'Motion For Interpretation of the Contract' asking that the court determine and declare that the contract was not one for a fixed price. The trial court sustained this motion. Defendants then moved for a Directed Verdict which the court also sustained. Plaintiffs have appealed from the the resultant judgment for defendants upon plaintiffs' petition assigning as error the trial court's action in sustaining these two motions. While the judgment entered is not too clear it apparently also is against defendants on their counterclaim, and defendants not only have not appealed but also have not appeared on this appeal by plaintiffs nor favored us with a brief.
Plaintiffs in their brief rest their charge of error of the court having wrongfully directed a verdict for defendants on plaintiffs' petition, on the single contention that the court erroneously interpreted the contract not to be one for a fixed price regardless of what the actual cost of construction was to the contractor. We limit ourselves to a consideration of that contention.
If the contract may reasonably be construed in accordance with plaintiffs' belief that it was for a fixed price of $15,993.30 plus a 10% contractor's fee of $1,599.93 thereon together with the cost of authorized extras, the trial court did err in its direction of a verdict for defendants, and it will be necessary to order a new trial. If, however, as defendants contended at the trial, the contract was unambiguous and did not establish a fixed price but obligated plaintiffs to pay for the actual construction costs of the house plus a 10% contractor's fee, plaintiffs tacitly concede they are not entitled to any ultimate recovery and are content to let the judgment stand.
Thus, whether the trial court erred is determined by the meaning of the contract. Although we will refer to additional provisions of the contract in later discussion we believe it helpful to set out sections 4 and 5 at this time:
'(a) $533.31 1/3 upon execution of this Agreement.
'(b) $533.31 1/3 when the building is ready for sheet rock.
'(c) $533.31 1/3 within thirty (30) days of completion of the...
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