Maas v. Dreckshage
| Decision Date | 18 December 1951 |
| Docket Number | No. 28114,28114 |
| Citation | 244 S.W.2d 397 |
| Parties | MAAS et al. v. DRECKSHAGE et al. |
| Court | Missouri Court of Appeals |
Bakewell, Bakewell & Cramer, and Claude I. Bakewell, all of St. Louis, for appellants.
William Waye, Jr., Theodore Bruere, Jr., and B. H. Dyer, all of St. Charles, for respondents.
HOUSER, Commissioner.
This is an action brought under Sec. 429.270, RSMo 1949, for the purpose of adjusting the claims, charges, credits and liens arising out of the construction of a dwelling house under an oral contract and to determine the relative rights of the parties.
Plaintiffs Richard and Marie Maas, husband and wife, owners of the house, claim that they have discharged all their obligations under the contract. They allege in their petition that defendant Dreckshage, the general contractor, agreed to build the house at a maximum cost of $10,000; that during the course of construction they paid him $7,000; that thereafter Dreckshage claimed a balance due to him from plaintiffs of $6,446.96 and told them there were unpaid bills of subcontractors and materialmen against the premises; that defendants Hackmann Lumber Company and Rauch Lumber and Grocer Company gave notice of intention to avail themselves of the mechanic's lien statute for materials furnished in the sums of $4,784.38 and $232.21, respectively; that other contractors may have lien claims against the property; and prayed that if the court should adjudge liens against the property in excess of $3,000, plaintiffs have judgment against defendant Dreckshage for such excess.
Defendant Dreckshage denied the terms of the oral agreement plead by plaintiffs, claimed that the agreement was to furnish the materials and labor necessary to build a five-room frame house with bath, and that he did so at the special instance and request of the plaintiffs; that the total amount of the cost thereof was $12,583.61; that plaintiffs were entitled to cash credit of $6,096.50 and other credits for materials in the sum of $20.08, leaving a total amount due him in the sum of $6,467.03 for which he prayed judgment and for a mechanic's lien against the building.
Defendants Hackmann Lumber Company and Rauch Lumber and Grocer Company answered and counterclaimed, Hackmann praying for judgment against defendant Dreckshage for $4,784.38 for lumber and materials sold and delivered to him for use in the construction of the building, and fully itemized therein, and for judgment against plaintiffs Richard and Marie Maas for $660.34 for materials personally receipted for by plaintiffs, Rauch Lumber and Grocer Company praying for judgment against defendant Dreckshage in the sum of $232.21 for materials sold, delivered and used in the construction of the house. Both defendants prayed that their judgments be fixed as liens against the property.
Plaintiffs by leave of court deposited $2,900 in the registry of the court, admitting that balance due under their contract with Dreckshage, claiming a credit of $100 due for failure of the contractor to install front and back steps and for needed repairs on the roof which they claimed was defectively constructed.
The decree of the trial chancellor found (1) that plaintiffs 'made and entered into an oral agreement with defendant Clinton Dreckshage, as an original contractor, for furnishing the materials and labor for the building and erection of a five room frame house with bath * * * that at the special instance and request of the plaintiffs and under an oral agreement with them, defendant Clinton Dreckshage furnished to and for said buildings the materials and performed all of the work necessary to build and erect said house'; (2) that after certain credits plaintiffs are indebted to Clinton Dreckshage in the sum of $6,312.23, for which judgment was entered in favor of Clinton Dreckshage and against plaintiffs and declared a lien against plaintiffs' real estate; (3) that Clinton Dreckshage is indebted to Hackmann Lumber Company and Rauch Lumber and Grocer Company for materials furnished in the sums of $4,784.38 and $232.21, respectively, for which judgments were rendered against Clinton Dreckshage and which sums or so much thereof as should remain unsatisfied after levy of execution on the property and effects of Clinton Dreckshage, were declared to be liens against plaintiffs' real estate.
Our duty in an equity appeal is to review the proceedings in the trial court de novo, Strohm v. Boden, 359 Mo. 573, 222 S.W.2d 772; Handlan v. Handlan, 360 Mo. 1150, 232 S.W.2d 944, on the whole record, make our own findings of fact, draw our own conclusions of law, and render or direct the rendition of such judgment as equity and justice may require, Uhrig v. Hill-Behan Lumber Co., 341 Mo. 851, 110 S.W.2d 412, giving due deference to the findings and conclusions of the trial chancellor. Held v. Reis, Mo.Sup., 193 S.W.2d 17, loc. cit. 20.
The principal question on this appeal is whether defendant Clinton Dreckshage agreed to build a house for plaintiffs for a maximum sum of $10,000, or whether the agreement was to build a house for the cost of the materials and labor furnished. It is admitted by all parties that the house was built under an oral contract.
Plaintiffs, contending that the agreement limited the cost to $10,000, offered their own testimony as well as that of Eleanore Dudley, the mother of Mrs. Maas, on this issue. The plaintiffs and Mrs. Dudley testified that there were several conferences between plaintiffs and defendant Dreckshage in the spring of 1948 looking to the building of a home on a lot owned by plaintiffs; that at the first conference attended by the above named and Mr. Wetter of the Hackmann Lumber Company plaintiffs informed Dreckshage that they had $10,000 to spend for a home; that they could not spend over $10,000 and that if they could not build a five-room home for that amount they would not build. At that time plaintiffs had no definite plans and Dreckshage said they 'would have to get the type of house which we (they) wanted' but that he 'saw no reason why a five-room house couldn't be built for 9500 to $10,000'; that it could be built for less than $10,000 if plaintiff Richard Maas would help in the construction.
Later plaintiffs found a picture of a house which suited them and Dreckshage was asked whether that house could be built for $10,000. After looking at the picture he said the only way he could tell definitely was to get the blueprints. Richard Maas testified that at the second conference in answer to his question 'Do you think it can be built for $10,000?' Dreckshage said 'Sure, that house can be built for $10,000, probably less.' The blueprints were ordered and after looking them over Dreckshage, according to plaintiffs, stated that he saw no reason why he could not build that house for $10,000; that he was 'positive * * *' 'almost positive' it could be built for $10,000 or less. Mr. and Mrs. Maas asked Dreckshage to build the house from the blueprints and they came to an agreement. Mrs. Dudley testified that at that time Dreckshage said 'he was sure he could build this home for that much money, maybe a little more,' and that she then said 'Don't say 'that much money or more', because we don't have much to spend.' Richard Maas testified that Dreckshage said he would build the house for $10,000; that 'we wouldn't want it to run over, we can't afford it, and he said, 'I will not. I am a man of my word and I keep my word and I will build it for $10,000''; that he would build that house for $10,000 'and not a dime more * * *'; that it 'can't possibly run over' $10,000; that the house 'could be easily built for $10,000.' Richard Maas stated that he would pay $10,000 for the construction of the home. They did not discuss the payment of bills as the job went along; the only one Maas paid was Dreckshage; plaintiffs were to pay Dreckshage and Dreckshage said he would pay the material bills as they became due--every bill, 'every subcontractor's bill he got.' Maas further testified that at that final conference Dreckshage said 'You don't have to worry--I know it can be put up for less than ten thousand--I am not that kind of a guy; when I say ten thousand I mean ten thousand.'
Plaintiffs conceded that there were no specifications--only a picture, floor plans and blueprints. They said it was agreed that the house was to consist of five rooms and bath, without a garage, to be built out of 'good' lumber and 'good materials' using 'just ordinary plumbing fixtures'--'just like any other home would have in, I suppose.' It was 'supposed to be plastered' and the exterior was to be frame but there was no discussion about the sheeting underneath the siding. The front door was agreed upon, the walls were to be 10 inches thick, there was to be a fireplace and the number of coats of paint was to be 'whatever goes with a house like that.' The floors were to be hardwood, but whether maple, red oak or white oak was not discussed. There was no agreement as to the grade of lumber, nor as to the electric wiring, kitchen linoleum, plumbing fixtures, what type of bath tub, wash bowl or toilet, what kind of hopper, or what size studdings or posts were to be used. Plaintiffs left to the contractor the dimensions of the living room, library, vestibule and bathroom. There was no discussion as to the rafters or joists, the height of the ceilings, the interior doors, screens, whether white or yellow pine lumber or trim was to be used or whether the house would have subflooring. Nothing was said about linoleum. There was no discussion prior to the time excavation began concerning hauling in dirt to level up the lot.
Mr. Maas testified the plans called for an oil furnace, but said there was no agreement as to the size of the furnace. Mrs. Maas testified that although they wanted a furnace they 'didn't say what kind of furnace we wanted in the house.' Mr. Maas testified the roof was to be composition tar shingles, Mrs. Dudley...
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