Kennedy v. Bowling

• Citation: 4 S.W.2d 438,319 Mo. 401
• Decision Date: 17 March 1928
• Docket Number: 25514
• Parties: John T. Kennedy and Margaret B. Kennedy, Appellants, v. George E. Bowling and Ray T. Bowling, Partners, Doing Business under Firm Name of George E. Bowling & Son
• Court: United States State Supreme Court of Missouri

4 S.W.2d 438

319 Mo. 401

John T. Kennedy and Margaret B. Kennedy, Appellants, v. George E. Bowling and Ray T. Bowling, Partners, Doing Business under Firm Name of George E. Bowling & Son

No. 25514

Supreme Court of Missouri

March 17, 1928

Motion for Rehearing Denied March 17, 1928.

Appeal from Jackson Circuit Court; Hon. Thomas B. Buckner Judge.

Reversed and remanded (with directions).

Turpin & Behrendt and Henry S. Conrad for appellants.

(1) The trial court erred in ruling that respondents' instruction in the nature of a demurrer to all the evidence in the case should have been sustained. Feagan v. Meredith, 4 Mo. 514; 9 C. J. 749, 750; Nance v. Building Co., 140 Ky. 564; Logan v. Field, 75 Mo.App. 594; Heden v. Institute, 62 Minn. 149; Busch & Latta Paint Co. v. Woermann Const. Co., 310 Mo. 419; Springdale Cemetery v. Smith & Pierce, 32 Ill. 252; Pump Co. v. Sprinkler Co., 84 Mo.App. 204; Smith v. Clark, 58 Mo. 145; Railroad Co. v. Smith, 21 Wall. (88 U.S.) 255; Kellogg Bridge Co. v. Hamilton, 110 U.S. 108; Boiler Works Co. v. Sievert, 256 S.W 555; Title Guarantee Co. v. Pam, 155 N.Y.S. 333; O'Neil Engineering Co. v. City of San Augustine, 171 S.W. 524; Barton Cotton Co. v. Vardell, 275 S.W. 62; Interior Linseed Co. v. Paint Co., 273 Mo. 433; Black River Lumber Co. v. Warner, 93 Mo. 374; Brown v. Brown, 90 Mo. 184; Greening v. Steele, 122 Mo. 287; Mayfield v. Richardson Machinery Co., 208 Mo.App. 206; Williams v. Railway Co., 153 Mo. 487; Hartford Mill Co. v. Tobacco Warehouse Co., 121 S.W. 477; General Fireproofing Co. v. Wallace, 175 F. 650; Nave v. McGrane, 113 P. 82; State v. Kendall, 15 Neb. 262; 1 Ency. of Architecture, p. 85. The jury were properly instructed. (a) Nave v. McGrane, 113 P. 82; 1 Ency. of Architecture, p. 85; Busch & Latta Paint Co. v. Woermann Const. Co., 310 Mo. 419; Kurth v. Morgan, 277 S.W. 50; State ex rel. Robertson v. Hope, 102 Mo. 410; Flaherty v. Transit Co., 207 Mo. 318; Root v. Railroad, 237 Mo. 640; Lowry v. Fire Ins. Co., 219 Mo.App. 121; Burgess v. Garvin, 219 Mo.App. 162; Walter v. Portland Cement Co., 250 S.W. 587. (b) Busch & Latta Paint Co. v. Woermann Const. Co., 310 Mo. 419; State ex rel. Robertson v. Hope, 102 Mo. 410; Christian v. Life Ins. Co., 143 Mo. 460; Moore v. Transit Co., 193 Mo. 411. (c) Wright v. Sanderson, 20 Mo.App. 534; Hirt v. Hahn, 61 Mo. 496; Spink v. Mueller, 77 Mo.App. 85; Walter v. Huggins, 164 Mo.App. 69; Simons v. Wittmann, 113 Mo.App. 357; Drainage District v. Surety Co., 252 Mo. 543. (3) Plaintiffs were not improperly joined. Ellis v. Harrison, 104 Mo. 270; St. Louis to use v. Von Phul, 133 Mo. 561. (4) The court erred in sustaining the motion for new trial and erred in sustaining the motion in arrest of judgment. Points and Authorities above. (5) The appeal was properly taken. R. S. 1919, sec. 1471.

Chas. A. Loomis and Halbert H. McCluer for respondents.

(1) Under the pleadings and evidence the appellants were not entitled to recover. Clamorgan v. Grisse, 1 Mo. 141; Lane v. Price, 5 Mo. 101; Singleton v. Fore, 7 Mo. 515; Gooch v. Conner, 8 Mo. 391; Bunce v. Beck, 43 Mo. 266; Pearson v. Carson, 69 Mo. 550; County of Johnson v. Wood, 84 Mo. 489; Boyd v. Paul, 125 Mo. 9; State ex rel. v. Hoshaw, 98 Mo. 358; Tracy v. Iron Works Co., 104 Mo. 103; Jones v. Shepley, 90 Mo. 307; Troggles v. Collison, 143 Mo. 527; Schmidt v. Pfarr, 2 N.E. 522; Lake City Mill Co. v. McVearr, 20 N.W. 233; Richardson v. Taylor, 136 Mass. 143; Page v. Wilson, 37 Mich. 415; Furber v. Barns, 19 N.W. 728; Briere v. Taylor, 126 Wis. 347; Stewart v. Parnell, 147 Pa. St. 523; Hilliker v. Francisco, 65 Mo. 603; Redheffer v. Lethe, 15 Mo.App. 12; Butts v. McMurry, 74 Mo.App. 526; Lansden v. McCarty, 45 Mo. 106; McQueen v. Chateau, 20 Mo. 222. (2) The trial court gave for plaintiffs instructions numbered 112 and 3, each of which was erroneous, and the giving of each justified the sustaining of the motion. (3) The refusal to give each of the following instructions requested by the respondents, entitled them to a new trial: numbers 1, 2, 3, 4, 5, 6, 7, and 10. (4) The refusal of the court to give, and its giving in a modified form, the following instructions, and each of them, authorized a new trial: numbers 11, 12, 13 and 4. (5) The admission of the following evidence over respondents' objections authorized the sustaining of the motion, viz: (a) Oral evidence to vary the written contract. (b) Admitting the witness, John T. Kennedy, over the objections of respondents, to testify as to his representing his wife in the transaction here involved. (6) There is no error assigned suggesting that the motion in arrest of judgment was not properly sustained. (7) The appeal is from the judgment and not from the order sustaining the motion for new trial.

OPINION

Atwood, J.

This case was transferred from Division Number One to Court en Banc, where it was reassigned. The facts and most of the issues in the case were so ably dealt with in the divisional opinion that we here adopt and literally quote much of the language of that opinion.

"This is a suit for damages. The plaintiffs are husband and wife and in the year 1920 acquired a tract of ground at 26th Street and Southwest Boulevard in Kansas City, Missouri, on which they procured to be erected two buildings, occupied after January 1, 1921, by John T. Kennedy Sales Co., and used by that company for the storage and sale of heavy chemicals and like commodities.

"Defendants constructed the buildings for plaintiffs, upon the 'cost-plus plan.' The cost of the materials and labor was a little in excess of $ 135,000, and the defendants were paid for their services a commission of ten per cent thereon. The agreement, as first made, was for the construction of a three-story building, and contiguously another building of one story. After operations were begun it was agreed that the three-story building should be extended to four stories, and this was done. The controversy is over the manner of constructing the four-story building. The floors, and their supports, of that building, did not withstand the strain of the weight of the chemicals and other articles stored therein, and plaintiffs were obliged to strengthen the floors and supports. Their suit is based upon that failure, and upon the ground that defendants, knowing the contemplated use, undertook to contruct the building in such manner that the floors would withstand the strain put upon them under that use. The second amended petition alleges that in all the transactions mentioned the plaintiff John T. Kennedy acted for himself and his wife; that desiring to have such building erected, he consulted with the defendant George E. Bowling in regard to the construction of the building, and explained to him the general nature of the stock which would be placed and stored therein, and told him that it would be necessary to have a building that would carry a load of at least 250 pounds to the square foot on all floors; that at said time, and at various times thereafter, said Bowling represented to the plaintiff that the defendants had years of experience in the construction of business buildings, and had special skill and knowledge of the requirements of such buildings, and the design and construction thereof, and that he could furnish a proper design for and properly construct a building, suitable for the purpose described by plaintiff; that plaintiffs having no knowledge of the subject themselves relied upon the skill, knowledge and ability which said Bowling represented himself to have, and engaged the defendants to construct a building suitable for the purpose described.

"The petition alleges that among the terms of the agreement made, defendants agreed to design the building, prepare at their own expense plans and specifications for the same, and submit them to the plaintiffs and to select and buy all materials and employ all labor used in the construction thereof, and plaintiffs agreed to pay for necessary materials upon delivery of invoices, and to advance the money for labor, and to pay defendants for their services ten per cent of the cost of construction; and that a memorandum in writing was made of a part of the agreement, between John T. Kennedy and defendants as follows:

"'Kansas City, Missouri,

"'September 2, 1920.

"'Geo. E. Bowling & Son,

"'Sharp Bldg., City.

"'Gentlemen:

"'I hereby propose that you shall build on my property at 26th Street and Southwest Boulevard, this city, one three-story building, and contiguously one one-story building according to plans and specifications to be furnished by you at your expense and approved by me, you to buy all material and to employ all the labor used in the construction of said building and to furnish such watchmen and caretakers as may be necessary to protect the buildings from vandalism and the material from theft.

"'The construction of said buildings is to begin at once, the grading therefor being now in progress, and completed as quickly as possible, endeavoring to have the same ready for occupancy by the first of January, 1921.

"'Upon the delivery to me from time to time of invoices for material used in the construction of said buildings, and duly authenticated pay-rolls for the labor employed, I will advance to you the amount thereof at your request.

"'For your services in connection with the superintending of the said construction I will pay you 10% of the cost of construction.

"'This letter is in duplicate copies, and if the proposition is satisfactory to you, you will please write your acceptance on one and return it to me, retaining the other copy for your own files and reference?

"'John T. Kennedy.

"'Accepted:

"'Geo. E. Bowling & Son,

"'By Geo. E. Bowling.

"'Ex. 2-R. C. A.'

"The petition further alleged that thereafter 'defendants exhibited...