Lewis v. Oliver

• Court: Missouri Court of Appeals
• Writing for the Court: Anderson
• Citation: Lewis v. Oliver, 220 S.W.2d 748 (Mo. App. 1949)
• Decision Date: 17 May 1949
• Docket Number: No. 27603.,27603.
• Parties: LEWIS v. OLIVER et al.

220 S.W.2d 748

LEWIS v. OLIVER et al.

No. 27603.

St. Louis Court of Appeals. Missouri.

May 17, 1949.

Appeal from Circuit Court, Cape Girardeau County; J. C. McDowell, Judge.

"Not to be reported in State Reports."

Action by Earl Lewis against Allen L. Oliver and others for damages for breach of contract. From an order sustaining defendant's motion for new trial after verdict and judgment for plaintiff, plaintiff appeals.

Reversed and remanded with directions.

J. Grant Frye, Gerald B. Rowan, Cape Girardeau, for appellant.

Lehman Finch, Cape Girardeau, Attorney, Elmer A. Strom, Frank Lowry, Rush H. Limbaugh, Jr., all of Cape Girardeau, of counsel, for respondents.

ANDERSON, Presiding Judge.

In this action plaintiff sued to recover damages for breach of contract. There was a verdict and judgment below for plaintiff. Thereafter, the trial court sustained defendants' motion for new trial, assigning error in plaintiff's principal instruction as the reason therefor. Plaintiff has appealed.

The contract declared on was for pumping out the contents of a cesspool on defendants' property. The petition alleged that the agreement was that plaintiff would perform this work at an agreed price of 25 cents per cubic foot; that plaintiff performed his part of the contract and pumped slightly in excess of 1,296 cubic feet, for which, under the terms of the agreement, he was entitled to the sum of $324. Judgment was prayed for said sum.

The answer denied the allegations in the petition that the agreed price was 25 cents per cubic foot, and denied that plaintiff performed all the conditions of the contract on his part to be performed. Said answer also denied the allegations that plaintiff pumped slightly in excess of 1,296 cubic feet, and that defendants were indebted to plaintiff in the sum of $324.

It was further alleged that said agreement was entered into upon the false representation of plaintiff that the price mentioned was reasonable and consistent with prices charged by him and others engaged in similar work, and that by reason thereof said agreement was void; that plaintiff breached said agreement; that plaintiff agreed to clean said cesspool in a manner whereby the odors therefrom would be completely eliminated from the area over which the refuse from said cesspool was spread and disposed of; that the odor remains from said cesspool and from the area over which the refuse therefrom was spread and disposed of; that said area was not adequately limed and disinfected, as plaintiff had agreed to do, "all to defendants' damage and as affecting the value of the work performed by the plaintiff."

It was further alleged that there was no meeting of the minds of the parties to the alleged agreement in that defendants, through their agents, understood and believed that the price of 25 cents, if agreed upon, was per cubic yard, and not per cubic foot as alleged by plaintiff.

The Cape Girardeau Country Club is an unincorporated association whose business is carried on and conducted by a Board of Trustees who hold title to the property of the association in trust for said association. The defendants herein are at the present time, and were at all times since the execution of the contract sued on, trustees for said association.

Plaintiff was at all times herein mentioned engaged in the business of cleaning cesspools and septic tanks in and around Cape Girardeau. His equipment consisted of a truck on which was a tank, a motor pump and hose. The usual procedure in cleaning a cesspool or septic tank was to draw off the contents thereof into the tank on the truck, and to convey the same to a place of disposal.

In August, 1947, defendants' cesspool was in need of cleaning. With this end in view, Mr. C. P. Harris, President of the association, called plaintiff on the telephone and made an appointment to meet him at the Country Club. Plaintiff thereafter went to the Country Club to keep this appointment. He was accompanied by his father and Arlo Massay. They met Mr. Harris and, at this meeting, an oral contract to clean the cesspool in question was entered into. After plaintiff arrived at the Country Club and met Mr. Harris, they went to look at the cesspool. It was covered with earth and there was no way of telling how large it was. Harris did not know its dimensions. Plaintiff testified: "He (Harris) said, `Well, what would you clean it out for?' I told him I would haul it off for thirty-five cents a cubic foot or let it run over the hill for twenty-five cents. He said, `Well, it sounds like that is cheap enough to me.'"

The cesspool in question was about 300 yards from the clubhouse. The terrain slopes downward from the clubhouse to the cesspool, and on the far side of the cesspool there is a large slope. The lay of the land, according to plaintiff's opinion, which was communicated to Harris at the time, was such as to make it impossible to haul away the contents of the cesspool by truck, and it was finally agreed that the contents of the cesspool would be pumped out over a hill, and permitted to drain into a ravine situated on the premises. The plaintiff further testified:

"Q. You said for dumping it in the ravine you would have to charge 25¢ a cubic foot? A. Yes, sir.

"Q. He said that was all right? A. Yes.

"Q. Was anything said about liming it? A. Yes. He asked me if I would lime it after I got it pumped out and I said I sure would."

An abstract of plaintiff's testimony with reference to the making of the contract, given in cross-examination, is as follows: "In my conversation with Mr. Harris on the day I met him out there he did not ask me to give some idea of what the job would cost. I told him thirty-five cents a cubic foot for hauling it off. I ordinarily charge 25¢ a cubic foot when I don't haul it off. I told him I would pump it out and let it run over the hill for twenty-five cents a cubic foot. That was the only job I ever done when I pumped it out on the ground and let it run down and limed it. I get $15 a load for my truck. I charge everybody that. I don't know of any job where I got thirty-five cents a cubic yard for pumping and hauling away."

Mr. Harris instructed plaintiff to begin work at noon August 16, 1947. Plaintiff started the work at that time. Helping him was his father, Willie Lewis; his brother-in-law, Arlo Massey; and a boy named Brown. The work started at 12 o'clock noon and was finished about 11:30 P.M. that same day.

After the cesspool was drained completely plaintiff's father went down into same and measured it. It measured 12' × 12', and was 10' deep. Before draining, the refuse in the cesspool stood within one foot of the top. Plaintiff put 200 pounds of lime on the refuse after it was drained into the ravine. Plaintiff stated that he was on the premises the next morning and detected no odor. He further stated that he was never on the premises after that, but that no one had ever complained to him about there being an odor from the job.

Plaintiff's father testified: "I heard Harris ask Earl how much he would charge for cleaning out the cesspool. He told him twenty-five cents, or thirty-five cents for hauling it away. We all decided it couldn't be hauled away. We went and looked at it and Earl told him what he would pump it out for — thirty-five cents a cubic foot for hauling it away, and twenty-five cents for pumping it out on the ground. Mr. Harris said: `You wait and I'll go in and talk to these boys and let you know.' We just stood there and waited and he went in and talked to the other fellows and said: `You fellows go to work on it Tuesday at noon.'"

Arlo Massey testified: "I was along when Earl Lewis had a conversation with C. P. Harris at the Country Club. I heard most of the conversation. Earl said he would charge thirty-five cents a cubic foot to haul it away and twenty-five cents to pump it on the ground. * * * When Earl said he would pump it out for twenty-five cents per cubic foot Harris said that sounded reasonable enough to him."

C....