McDowell v. Schuette
| Decision Date | 21 October 1980 |
| Docket Number | No. 40498,40498 |
| Citation | 610 S.W.2d 29 |
| Parties | David McDOWELL and Donna McDowell, d/b/a David McDowell Construction Supply and Cabinet Company, Plaintiffs-Respondents, v. Don SCHUETTE and Nancy Schuette, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Albert C. Lowes, Thomas A. Ludwig, Jackson, for defendants-appellants.
John P. Lichtenegger, Jackson, for plaintiffs-respondents.
Plaintiffs, David and Donna McDowell, who are in the construction business, brought an action in two counts against defendants. In the first count they sought to recover the balance due under a contract for construction of a house for defendants. The second count was in quantum meruit for labor and materials furnished defendants that were not within the terms of the contract. Defendants filed a counterclaim in two counts alleging inter alia that they had been damaged because the house was not completed in "a good and workmanlike manner" and because the work was not timely completed. Judgment was entered upon a jury verdict for plaintiffs on both counts of their petition that assessed damages at $14,150 on Count I and $5,280 on Count II. Defendants were awarded $2,600 on Count I of their counterclaim. Defendants appeal from the judgment.
We affirm.
Plaintiffs entered into a contract with defendants to build a house upon land owned by defendants for the sum of $58,000.
The contract consisted of one page captioned "Agreement," six pages of specifications and a set of plans drawn by plaintiff Donna McDowell. Payment was to be made as the work progressed with a final payment of $19,300 payable upon completion of the house. There was no date set out in the contract for completion.
The contract contained the following provisions:
"1. That the Contractor shall furnish all labor and materials needed for the construction of a house on Owner's ground according to the plans and specifications attached hereto.
2. That the Owner may make separate contracts to secure extra items, services, or equipment not included in the general scope of specifications, provided the exact nature of their work shall be specifically shown and the contracts therefor attached hereto.
3. That no changes from the original plans and specifications shall be made, required, or collected for, unless both parties agree thereto in writing as to the extent of the changes and the amount to be paid or deducted therefor, before work thereon shall begin."
In most instances the specifications, as part of the contract, provided for specific items of work and materials. With respect to some items where there was a matter of choice for the defendants, the specifications provided for a dollar amount as an "allowance." As examples under the heading "Plastering and/or Paneling" it was provided:
Under "Carpeting and/or Inlaid Vinyl" it stated:
This contract was drafted by plaintiffs. Other provisions of specifications will be set out where relevant to our discussion.
Construction started on the house on March 4, 1976. Defendants moved into the house on November 18, 1976. During the progress of the construction there were numerous discussions with respect to the quality of the work, various changes in the plans and selection of items of decor, and the exercise of options where the plans indicated work that was intended to be done in the future such as partitions on the ground floor level of the house.
Workmen were sent out on numerous occasions to correct deficiencies. After defendants occupied the house they wrote a letter to plaintiffs listing numerous items that were not properly done or were not furnished in accordance with the contract. Plaintiffs again sent workmen on many occasions to make corrections. Defendants made a $6,000 payment upon the last installment due under the contract. They were not satisfied with the work and refused to pay the balance of $13,300. Defendants also refused to pay for what plaintiffs denominate as materials and services that exceeded "allowances" and "descriptions" contained in the specifications. Plaintiffs had billed defendants $1,758.92 for these items less a credit for items that cost less than the "allowances." The evidence was that the credit amounted to $132.96. These items and the balance of $13,300 are the subject of Count I of plaintiffs' action which sounds in contract.
Plaintiffs also provided labor and materials "outside of the contract" for which they billed defendants in the sum of $6,163.08. This billing is the subject of Count II of plaintiffs' petition, an action in quantum meruit.
According to defendants' evidence there were still deficiencies. Defendants had spent over $100 on corrections and it would cost $2,489 to make necessary repairs that would still not put the house back in the shape it should have been in upon completion of the work. The judgment for defendants upon their counterclaim of $2,600 approximates the cost of repairs. Defendants also presented evidence that the value of the house as built by plaintiffs was $48,000. Plaintiffs' evidence tended to show that the house as built has a value of between $67,000 and $71,000.
Defendants urge six points relied on with fifteen sub points.
We decline to consider Point Relied On No. I because it does not comply with Rule 84.04(d). Though it will lengthen the opinion we are compelled to set out the point and the subpoints verbatim omitting the citations. The point relied on reads as follows:
"The trial court prejudicially erred in permitting respondent to repeatedly inject evidence into the case which was parol to the contract, and, therefore, inadmissible, and erred in doing this over the repeated objections of the appellants, and prejudicially erred in doing this after the motion in limine to exclude the parol evidence had been filed; this was error for the specific reason that the parties had entered into a mutually binding contract and said contract was complete and unambiguous, and, moreover, was a form contract used by the plaintiffs in their business and, therefore, it was prejudicial error to allow evidence of any agreements parol to the contract.
A. The trial court erred in allowing the plaintiffs to inject evidence parol to the unambiguous written contract in order to show that the plaintiffs were entitled to more than the amount set forth in the contract under Count I of their petition in the absence of a showing of some ambiguity in that contract for the reason that such a showing is required before outside evidence and may be admitted to vary an unambiguous contract.
B. If there is an ambiguity shown in the contract, that ambiguity must be construed against the party drawing the contract and not against the party merely signing it, and, therefore, the trial court erred in not construing the ambiguity against the plaintiffs in this case for the reason that the plaintiffs were the experienced parties in this transaction, and it was their contract that was in use, and as a result, any ambiguity should be construed against plaintiffs.
C. If, in fact, the plaintiffs wished to proceed on evidence outside the contract and if the plaintiffs wished to instruct the jury on the issue of the evidence which was parol to the contract and additional to the contract, the plaintiffs should have submitted an instruction which would have properly instructed the jury on the consideration of the contract as it was modified by parol evidence and the trial court should have given such an instruction, and the trial court erred in not instructing the jury properly on the amount due to plaintiffs as additions to the contract in question, if indeed anything was due to plaintiffs.
D. The trial court erred in refusing to give Instruction Nos. A and B for the reason that such 'Withdrawal Instructions' would have corrected the error committed by the trial court when the trial court admitted evidence outside the written contract to explain and interpret an unambiguous written contract, and by the court refusing to give these instructions, the defendants were prejudicially harmed by the jury being allowed to consider evidence outside the unambiguous contract."
Rule 84.04(d) requires that:
Although the point relied on is lengthy we cannot read it as pointing out what ruling or rulings of the court are sought to be reviewed nor are we advised what portion or portions of the contract could have been considered ambiguous. Nor do we get any assistance from the argument portion of the brief. It makes no reference to any ruling made by the trial court. There are only four references to the transcript in the argument on this point. The pages of the transcript referred to in the argument do not contain any ruling by the trial court or have any direct bearing on the statements contained in this point.
We feel that we must repeat again the admonitions of Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978) found at page 686:
...
To continue reading
Request your trial