Kansas City Structural Steel Company v. Athletic Building Association

• Decision Date: 02 April 1923
• Parties: KANSAS CITY STRUCTURAL STEEL COMPANY v. ATHLETIC BUILDING ASSOCIATION et al.; FLOUR CITY ORNAMENTAL IRON COMPANY and SWENSON CONSTRUCTION COMPANY, Appellants
• Court: Missouri Supreme Court

249 S.W. 922

297 Mo. 615

KANSAS CITY STRUCTURAL STEEL COMPANY v. ATHLETIC BUILDING ASSOCIATION et al.; FLOUR CITY ORNAMENTAL IRON COMPANY and SWENSON CONSTRUCTION COMPANY, Appellants

Supreme Court of Missouri

April 2, 1923

Appeal from Jackson Circuit Court. -- Hon. Samuel A. Dew, Judge.

Reversed (with directions).

H. E Colvin and Clyde Taylor for Swenson Construction Company Appellant.

(1) The Iron Company cannot recover any sum for loss of profit because (a) its pleading does not allege any such cause of action therefor and is inconsistent therewith, and (b) all the evidence showed there was no such loss. The lower court erred in rendering judgment therefor and did not err in setting the same aside. It likewise erred in receiving evidence upon that subject. Merrill v. Trust Co., 46 Mo.App. 235; State to use v. Samuels, 28 Mo.App 649; Emmert v. Meyer, 65 Mo.App. 609; Pomeroy v. Fullerton, 113 Mo. 440; Hanks v. Hanks, 218 Mo. 670; 678; Henry County v. Bank, 208 Mo. 209, 225; Aston v. Transit Co., 105 Mo.App. 231; Weil v. Postern, 77 Mo. 287; Compton v. Railroad, 147 Mo.App. 414, 420; Cosgrove v. Leonard, 175 Mo. 100; Marr v. Zeidler, 145 Mo.App. 199; Waldhier v. Railroad Co., 71 Mo. 514; Cole v. Armour, 154 Mo.App. 555; Roaring Fork Potato Growers v. Clemons Produce Co., 193 Mo.App. 653. The petition alleging performance, no recovery can be had on the theory of excuse for performance, nor waiver thereof. Roaring Fork Potato Growers v. Clemons Co., 193 Mo.App. 658; Lantiz v. King, 93 Mo. 513; Mohney v. Rees, 40 Mo.App. 99; 9 C.J. 765; Johnson Forge Co. v. Leonard, 94 A.S.R. 86, 57 L.R.A. 225; 6 R.C.L. 931.

Davis & Woodruff for Flour City Ornamental Iron Company, appellant.

(1) The expenses incurred preparatory to the materials purchased or provided for, and the work and labor done, in the performance of this contract, were properly included in the account of the Flour City Ornamental Iron Company. 9 C. J. 822; 17 C. J. 855; Bradley Htg. Co. v. Sayman Realty & Inv. Co., 201 S.W. 864; Johnston v. Star Bucket Pump Co., 202 S.W. 1143; Knotts v. Clark Construction Co., 249 F. 181; P. J. Carlin Const. Co. v. Guerini Stone Co., 241 F. 545; United States v. U. S. F. & G. Co., 236 U.S. 512; City of Philadelphia v. Tripple, 230 Pa. 480. (2) The item "profit under contract" included in the account sued upon herein was not objectionable as being insufficiently itemized, in view of the fact that Swenson Construction Company filed a reply thereto, and proceeded to trial without moving to have this item stated with greater particularity. Meyer v. Chambers, 68 Mo. 626; Harford v. Boyes, 56 Mo.App. 139; Grefeller v. Graefemann, 64 Mo.App. 162; Commission Company v. Block, 130 Mo. 668; Whitewater Mercantile Co. v. Devore, 130 Mo.App. 339; Garnett & Allen Paper Co. v. Publishing Co., 156 Mo.App. 187; Schneider v. Johnson, 164 Mo.App. 639; Merkle v. Powe, 165 Mo.App. 402. (3) The profit which the Flour City Ornamental Iron Company would have made had it been permitted to complete its contract, constituted one item or element of the damage by it sustained, when, without fault on its part, it was prevented from completing its contract, and this item was properly included in the account. 9 C. J. 822, sec. 159; 17 C. J. 855, sec. 172; Bradley Htg. Co. v. Sayman Realty & Inv. Co., 201 S.W. 864; Johnston v. Star Bucket Pump Co., 274 Mo. 514; United States v. Behan, 110 U.S. 338; Edward De V. Tompkins v. City of Bridgeport, 94 Conn. 659; Edward De V. Tompkins, Inc. v. City of Bridgeport, 94 Conn. 687; McGrew v. Inc. Co., 106 Kan. 348; Chase v. Smith, 35 Wash. 631; Bradley v. Realty Co., 42 Nev. 411; McConnell v. Corona City Water Co., 149 Cal. 60, 8 L. R. A. (N. S.) 1171; 1 C. J. 649, sec. 147; Nedvideck v. Meyer, 46 Mo. 600. (4) The allegations in the cross-petition of the Flour City Ornamental Iron Company considered in connection with the statement of account thereto attached, and the evidence introduced in support thereof, are sufficient to warrant and support a recovery for the item of lost profit. Secs. 1257, 1272, R.S. 1919; Olive Street Bank v. Phillips, 179 Mo.App. 478; Thomas v. Bambrick Bros. Const. Co., 189 Mo.App. 623; Mekas v. Fricke, 159 Mo.App. 631; Frederick v. Bruckner, 124 Mo.App. 31; Oil Well Supply Co. v. Wolfe, 127 Mo. 616; Davis v. Watson, 89 Mo.App. 15.

OPINION

In Banc.

RAGLAND J.

-- The Swenson Construction Company, hereinafter called the Construction Company and the Flour City Ornamental Iron Company, which will be referred to as the Iron Company, are codefendants in a proceeding under the statute to establish and enforce numerous mechanics' and materialmen's liens against a certain parcel of land in Kansas City and the improvements thereon. With respect to their relation to each other and to the making of the improvements which gives rise to the lien claims sought to be established, the Construction Company and the Iron Company are original contractor and sub-contractor respectively. This appeal has to do solely with questions growing out of the trial of the issues between them.

The cross-petition of the Iron Company, in so far as it stated a cause of action upon which a personal judgment only could be rendered, was as follows:

"That thereafter defendant Swenson Construction Company entered into a contract with this defendant, the Flour City Ornamental Iron Company, whereby it engaged and employed this defendant to manufacture and furnish a large amount of ornamental iron and bronze and other building materials and supplies for and to be used and employed in the erection and construction of said business and club building upon the real estate above described, and to do and perform the necessary work and labor of forming and fabricating said iron and bronze into condition for use in such building; that said contract between Swenson Construction Company and this defendant was made on or about the 29th day of September, 1919, and that thereafter and pursuant to said contract, this defendant sold, manufactured and furnished a large amount of building materials and supplies, and did and performed the work and labor of forming and fabricating said materials and supplies to and for said Swenson Construction Company, all of which said building and material and supplies were sold, manufactured and furnished upon the faith and credit of the real estate above described, and of the club and business building being erected thereon, and at the special instance and request of said Swenson Construction Company; that said building materials and supplies were of the kinds and qualities contracted for and specified by said Swenson Construction Company, and were formed and fabricated in accordance with the directions of said Swenson Construction Company. A statement of account showing the items of said building materials and supplies, together with the prices and amounts charged therefor, and the amount due on said account, is hereto attached, marked 'Exhibit A,' and filed herewith, and by this reference thereto is incorporated in and made a part of this petition.

"Defendant, the Flour City Ornamental Iron Company, states that said building materials and supplies, and the work and labor of forming and fabricating the same, were, when sold, manufactured and furnished, and now are, reasonably worth the amounts set opposite the respective items thereof on the attached statement of account, and that all of said building material and supplies, and the work and labor of forming and fabricating the same, were, when sold, manufactured, and furnished, and now are, reasonably worth the total sum of $ 15,977.45, which sum said Swenson Construction Company promised and agreed to pay this defendant therefor, and which sum is now justly due and owing to this defendant for said building materials and supplies sold, manufactured and furnished as aforesaid."

The prayer was for judgment against the Construction Company in the sum of $ 15,977.45 and a lien for that amount against the real estate, improvements, etc.

The last item of the statement of account referred to in the pleading as "Exhibit A" was: "Profit under contract, $ 10,280."

The answer of the Construction Company specifically denied all the allegations of the cross-petition above set out except those relating to the making of a contract pursuant to which the Iron...