McDowell v. Miller

Decision Date12 October 1977
Docket NumberNo. 10353,10353
Citation557 S.W.2d 266
PartiesWilliam McDowell, d/b/a McDowell Asphalt Paving Co., Plaintiff-Respondent, v. Marsh C. MILLER, Defendant-Appellant, and Gladys S. Miller, Defendant.
CourtMissouri Court of Appeals

John Z. Williams, Williams & Smallwood, Rolla, for defendant-appellant.

Dan L. Birdsong, Routh, Thomas, Birdsong & Hutton, Rolla, for plaintiff-respondent.


Plaintiff William McDowell, an individual doing business as McDowell Asphalt Paving Co., brought this action against Marsh C. Miller and Gladys S. Miller, husband and wife, for the balance allegedly due plaintiff for work and materials furnished in connection with the construction of a race track. The petition alleged that the defendants "have made some payments on the initial amount of $98,679.20" but refused to pay the balance due of $17,772.75. The petition sought judgment in the latter amount, together with interest. The trial court, sitting without a jury, awarded plaintiff judgment in the amount of $17,772.75 against defendant Marsh C. Miller, and the latter appeals. The trial court also found against plaintiff on his claim against Gladys S. Miller but the correctness of that ruling, not attacked by either side, is not involved on this appeal.

Defendant Marsh C. Miller is the president of Rolla Speedway, Inc., ("Speedway"), a Missouri corporation, which was formed in 1968. Defendant is also the owner of Miller's Auto Salvage ("Salvage"), an unincorporated business.

Defendant's first point is that the trial court erred "in rendering judgment for the plaintiff and against defendant on plaintiff's theory of quantum meruit because the evidence was that (Speedway), and not defendant, received the benefit in value of the services rendered by plaintiff."

Appellate review of this nonjury action is governed by Rule 73.01 1 as construed in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The principles stated there have received compliance but need not be restated.

Speedway, the corporation, on May 28, 1971, signed, as lessee, a lease of "a portion of fairgrounds" located south of Rolla, Missouri, "for the purpose of constructing and operating an automobile race track." The lease had an initial term of 10 years commencing January 1, 1971. The lease included the agreement by Speedway that it would build the track "at their (sic) own expense." The lease was executed by the lessee in this manner:


/s/ M. C. Miller


/s/ Gladys Miller

Attest. Secretary

It bore the corporate acknowledgment, executed by defendant as Speedway's president, and the corporate seal.

Sometime between December 1970 and March 1971 defendant had a conversation with plaintiff in which defendant said that he was going to build a race track and pave it. Plaintiff told defendant that plaintiff was thinking about buying an asphalt plant and wanted to know if plaintiff "could be sure of his job." Defendant said, "You are going to do my job, Bill." The following was elicited on direct examination of plaintiff:

"Q. Did he ever mention anything, except him requesting the work? Did he, himself, request that he wanted the work done?

"A. Best of my knowledge it was just Mr. Miller."

In late May 1971 plaintiff, at the request of defendant, began the construction of the race track. Over 99 percent 2 of the work was completed by July 1, 1971.

On June 10, 1971, plaintiff submitted to defendant two written "proposals," respectively identified at the trial as Exhibit 1 and Exhibit 2. Both Exhibit 1 and Exhibit 2 were on printed forms bearing plaintiff's business name. Each showed that the proposal was submitted to "M. C. Miller." A typewritten portion of each stated that plaintiff would furnish "all labor and materials." Exhibit 1 dealt with the laying of a 4-inch "base rock, water and roll on race track, priming, and laying 4-inch asphaltic concrete in two 2-inch lifts." The typewritten portion of Exhibit 1 also stated, "$4.00 per ton for base on track, $20.00 per ton for asphaltic concrete on track."

The lower portion of Exhibit 1 was entitled "Acceptance of Proposal." It contained the following language: "The above prices, specifications and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. Payment will be made as outlined above." On June 16, 1971, defendant signed Exhibit 1, the signature being "M. C. Miller."

Exhibit 2 differed from Exhibit 1 in that the former dealt with the "pit area" and a road. The depth of the "base rock, water and roll" was two inches and the depth of the "asphaltic concrete" was two inches. Exhibit 2 called for "$2.80 a ton for base rock" and "$15.20 a ton for asphaltic concrete." Defendant signed Exhibit 2 in the same manner as he signed Exhibit 1.

Neither Exhibit 1 nor Exhibit 2 contained the corporate name of Speedway or made any reference to the corporation.

Plaintiffs's evidence showed the amount due plaintiff for performing the work described in those two exhibits was $97,761.20. Payment on that indebtedness emanated from three sources:

1. Speedway. These payments were by 27 corporate checks, the first dated June 8, 1971, and the last dated June 10, 1974. Four checks were written in 1971 11 in 1972 8 in 1973 and 4 in 1974.

2. Salvage. Beginning August 16, 1971, and ending on December 13, 1973, 3 plaintiff from time to time purchased automobile parts and supplies from Salvage but did not pay for them. Plaintiff treated the amount of each such purchase as a payment by defendant on defendant's indebtedness to plaintiff. Defendant's evidence showed that plaintiff "does not owe Salvage anything." Salvage also made four payments 4 (three in 1972 and one in 1973) by check, the smallest being $1,000 and the largest being $1,312.54.

3. Defendant. On June 20, 1971, defendant made a cash payment of $2,000 and a payment by check of $3,000.

Defendant testified that plaintiff's workmanship was superior and that the job was done in a satisfactory manner. Defendant admitted that, prior to the trial, he had testified, apparently by deposition, that he had no disagreement "with the balance due." Defendant admitted that he had been told by plaintiff that "the original full price for all the work done out there was $98,679.20" (apparently including the $918 item mentioned in footnote 2) and that he, defendant, had not "expressed any dissatisfaction" with that total until time of trial. Defendant testified that his agreement, at time of trial, "with the balance due" was "the number of yardage charged, number of tons." Defendant thought "there is not that amount of tons there" because he had had the track and pit surveyed and measured.

Plaintiff's evidence showed the number of tons of base rock and asphaltic concrete used in the construction of the race track (Ex. 1) and the pit area and road (Ex. 2). These tonnage figures, applied to the rates respectively prescribed in the two exhibits, justify plaintiff's computation of the total amount of the indebtedness ($97,761.20) prior to the crediting of payments.

The tonnages were based upon actual weighings conducted at plaintiff's asphalt plant. The trial court rejected defendant's evidence which sought to show that plaintiff's tonnage figures were too high.

The first race on the track was held on July 4, 1971. Defendant testified that in 1974 "we were enjoined from operating the speedway." 5

On December 6, 1971, Speedway, by its president, M. C. Miller, executed two promissory notes in favor of plaintiff. One was in the principal amount of $48,880.60, the balance then due plaintiff under Exhibit 1 for the race track. This note called for monthly payments of $1,000 together with interest at the rate of eight percent per annum payable monthly. The other note was in the amount of $5,880.60, the balance then due plaintiff under Exhibit 2 for the pit area and road. This note called for monthly principal and interest (eight percent) payments but the amount of the principal payment was left blank.

Plaintiff, who had a fourth grade education, testified that he did not know of the existence of Speedway as a corporation until Miller, for the corporation, signed the notes in December, 1971.

Defendant's first point makes the erroneous assumption that plaintiff's petition is limited to the theory of quantum meruit. The fact is that the petition pleaded execution by defendant of Ex. 1 and Ex. 2. Both exhibits were attached to the petition, thereby becoming "a part thereof for all purposes." Rule 55.12; see also Rule 55.22. The petition further pleaded that plaintiff performed the work and furnished the materials "described in (Ex. 1 and Ex. 2)." The tonnage rates prescribed by the two exhibits were also specifically pleaded and the petition stated that the defendant "by the (exhibits)" agreed to pay plaintiff those rates. The petition further stated that the total amount due for "the work as described in (Ex. 1 and Ex. 2)" was $98,679.20 prior to the crediting of payments. Plaintiff's evidence supported the allegations of the petition and included proof of the execution by the defendant of the two exhibits and full performance by the plaintiff of the work therein described.

Quantum meruit means "as much as he has deserved" and the burden is on the plaintiff to plead and prove that his charges were fair and reasonable. Williams v. Cass, 372 S.W.2d 156, 161(10, 11) (Mo.App.1963). "Bluntly put, the failure to prove the reasonable value of services rendered or materials furnished is fatal to recovery therefor in quantum meruit." Williams, supra, at p. 161. The instant petition, although stating that the contractual rates were reasonable, was based, at least in part, upon express written contract. Moreover, "(i)f the petition contains averments which, if proved, would entitle plaintiff to recover either on an express contract or on quantum meruit, and if it is impossible to say...

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    ...may be had, may be treated as surplusage and disregarded.' Emerson v. Treadway, 270 S.W.2d 614, 621(14) (Mo.App.1954)." McDowell v. Miller, 557 S.W.2d 266, 270(2, 3) In challenging the sufficiency of Count II to plead quantum meruit, Wilkerson's brief says it is deficient because it does no......
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