Martin v. Martinous

• Decision Date: 15 April 1949
• Docket Number: No. 6814.,6814.
• Citation: 219 S.W.2d 667
• Parties: MARTIN v. MARTINOUS et al.
• Court: Missouri Court of Appeals

219 S.W.2d 667

MARTIN v. MARTINOUS et al.

No. 6814.

Springfield Court of Appeals. Missouri.

April 15, 1949.

Appeal from Circuit Court, Webster County; Morgan M. Moulder, Judge.

"Not to be published in State Reports".

Action by C. A. Martin against Mary Martinous, Phillip E. Martinous and Benjamine (Bennie) Martinous for services rendered, wherein defendants counterclaimed. From an order granting defendants a new trial, plaintiff appeals.

Affirmed.

J. Lewis Wyatt, of Springfield, and John C. Pope, of Marshfield, for appellant.

D. Raymond Carter, of Marshfield, and Sizer & Myres, Wm. J. B. Myres, and Edward V. Sweeney, all of Monett, for respondents.

McDOWELL, Judge.

This is an appeal by plaintiff from an order of the Circuit Court of Webster County, Missouri, granting defendant a new trial.

The action was brought in the Circuit Court of Greene County, Missouri, May 9th, 1947, and was sent to Webster County on change of venue. The petition is in three counts. Counts two and three were dismissed. In count one plaintiff, a contractor, sues the defendants in quantum meruit for the reasonable value of labor and materials furnished in the construction of a building in the City of Springfield, Missouri. The petition states a simple action in quantum meruit. It sets out a full itemized statement of account between the parties, showing the items of labor and materials furnished, the amount of Workmen's Compensation Insurance carried on the job and ten per cent commission on the cost of the building for managing and supervising the construction thereof. The petition alleges that plaintiff was paid $1,000, leaving a balance due plaintiff of $2,800.75, for which amount plaintiff prays judgment with six per cent interest from the 13th day of April, 1946.

To this petition the defendants filed answer and counterclaim. The answer admits that the defendant, Phillip E. Martinous was the duly authorized and acting agent of defendant, Mary Martinous and admits that said agent paid the sum of $1,000 to plaintiff on the 10th of February, 1946 and denies all of the other allegations alleged in the petition.

Defendants' counter-claim pleads that on the 11th day of December, 1945, Phillip E. Martinous, as agent of Mary Martinous, entered into a contract with plaintiff for the construction of a dwelling at 1083 East Portland Avenue, Springfield, Missouri; that plaintiff agreed to complete said building in ninety days and that the cost thereof would not exceed $6,000; that plaintiff should receive ten per cent of the total cost of the building for services in supervising and constructing same; that the total maximum amount to be paid by the defendant, under the contract, was $6,600. The counter-claim pleads that the plaintiff failed to perform his part of the contract and his duties thereunder, in that he failed to provide an electric saw as promised, to keep the laborers on the job, to properly supervise them and to complete the work within ninety days as agreed. The counter-claim alleges that defendant was required to personally take over the construction and finish the building at a cost of $8,670. Defendants further plead that they have been damaged in the sum of $2,670 because of said breach of contract and pray judgment for that amount.

Plaintiff's reply to the answers and counterclaims of the defendants admits that he entered into a contract for the construction of a dwelling at 1083 East Portland Avenue and denied each and every other allegation in the counter-claim contained.

Plaintiff dismissed his cause of action as to defendants Phillip E. Martinous and Benjamine Martinous and the jury returned a verdict for the plaintiff on his petition, for $2,000, and for the plaintiff and against the defendant on the defendant's counterclaim. Judgment was rendered by the court on the 15th day of May, 1948, on said verdict for $2,000.

The defendant, Mary Martinous, filed a motion for a new trial on the 21st day of May, 1948, which motion was sustained by the court on August 19, 1948, for the reasons as set forth in paragraph one of defendant's motion for new trial.

The motion for a new trial contained seven assignments of error. The first assignment states that the court erred in admitting plaintiff's exhibit No. 2 because it was secondary evidence. This exhibit was admittedly copied from plaintiff's original time book and shows the number of hours worked by each laborer on the building and the amount paid for such labor. The exhibit was admitted to show the correctness of plaintiff's claim pleaded. The trial court found the admission of this testimony to be error and granted a new trial and, from the action of the court on this assignment of error, plaintiff appeals.

The only error assigned in plaintiff's appeal is the action of the court in holding that the admission of plaintiff's exhibit No. 2 was error. However, defendant brings up one additional error complained of in her motion for new trial, that is, that plaintiff failed to make a prima facie case on his petition and defendant's motion for directed verdict on plaintiff's cause of action should have been sustained.

Such evidence as is necessary to dispose of the alleged errors will be set out in detail in the course of the opinion.

Respondent complains of the action of the trial court in refusing to sustain her motion for directed verdict. This is point No. 2 under points and authorities of respondent's brief. The reason he assigns is that plaintiff failed to make a prima facie case. Defendant's request, in her motion for new trial, for a directed verdict at the close of plaintiff's evidence and at the close of all the evidence did not state the specific grounds therefor. Section 122 of the Civil Code, Mo.R.S.A. § 847.122, requires that, in the motion for a directed verdict, the party make known to the court his grounds therefor, and Missouri Supreme Court Rule No. 3.23 construes the Code to mean that the request for a directed verdict make specific statements of the ground therefor. The defendant, respondent herein, did not comply with the law in this respect. However, since respondent has complained that plaintiff's evidence did not make a case, we will consider this assignment under Missouri Supreme Court Rule No. 3.27, which rule provides: "Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom."

In Lowry v. Mohn, Mo.Sup., 195 S.W.2d 652 654, the court states the law as follows: "In testing the sufficiency of the evidence to make out a case submissible to a jury upon motion for a directed verdict (as formerly upon a demurrer to the evidence or a request for a peremptory instruction, now abolished by the Civil Code of Missouri), the plaintiff's evidence must be considered true, and the plaintiff given the benefit of every inference of fact which can be reasonably drawn therefrom." Hardin v. Illinois Cent. R. Co., 334 Mo. 1169, 70 S.W.2d 1075; Section 112, Civil Code of Missouri, Laws of Missouri 1943, p. 387, Mo.R.S.A. § 847.112.

In City of St. Louis v. Parker-Washington Co., 271 Mo. 229, 196 S.W. 767, 769, the court states the law as follows: "The findings of fact by the trial court, if supported by any substantial evidence, are binding upon this court. In other words, we will not weigh conflicting evidence with the view of determining its weight, but will only review the evidence to determine whether or not there is substantial evidence in support of the trial judge's findings of fact."

Plaintiff testified that he entered into an oral agreement with the defendant's agent, Phillip Martinous, to construct a dwelling house for the defendant; that at the time the agreement was made he and Phillip Martinous and his brother, Benjamine Martinous were in a car in front of plaintiff's house. This question was asked the plaintiff:

"Q. Tell the court and jury what that agreement was? A. I explained to Mr. Martinous the fact that materials were hard to get, and that they were high, and he assured me that he had various connections, friends, where he would have no difficulty in securing materials, regardless of how critical they were and he showed me a sketch, pencil sketch, of a house he wanted to build, and I figured the square footage on the house and gave him an estimate of the cost of constructing that house, and he agreed to furnish all material and pay for same; I was to make the list, order the materials, and they were to be billed to him and he was to pay for them, and I was to get ten per cent on the total cost of the house, to construct it."

The plaintiff testified that this contract was to cover the cost of material and labor and the Workmen's Compensation Insurance on the men while working on the job. He testified that he paid the labor each Friday night by check; that he employed the labor; that he had no definite plan or specifications to work from; that all he had was a pencil sketch for the floor plan. He testified that it was agreed that the building was to be a duplicate of a house at 1085 East Portland Avenue. The house plaintiff was to build was to be at 1083 East Portland. Plaintiff testified that there was to be a difference in the roof of the house he was to construct and that of the house at 1085 East Portland; that the roof he was to put on the house was to be copied after one on a house he was building of his own. Plaintiff testified that he proceeded to construct the house in pursuance to this contract. He made out a bill for the material and furnished the list to the defendant's agent and that he did get the material; that he furnished the labor; that he started the construction sometime in January; that he did not remember the exact date in 1946. Plaintiff testified...