McIntyre v. Kansas City

• Decision Date: 03 May 1943
• Citation: 171 S.W.2d 805,237 Mo.App. 1178
• Parties: George E. McIntyre, Respondent, v. Kansas City, Missouri, a Municipal Corporation, Appellant
• Court: Kansas Court of Appeals

171 S.W.2d 805

237 Mo.App. 1178

George E. McIntyre, Respondent, v. Kansas City, Missouri, a Municipal Corporation, Appellant

Court of Appeals of Missouri, Kansas City

May 3, 1943

Appeal from Jackson Circuit Court; Hon. Emory H. Wright, Judge.

Reversed.

William E. Kemp, City Counselor, and John J. Cosgrove Assistant City Counselor, for appellant.

(1) The court erred in refusing to give defendant's instruction lettered "A" and instruction lettered "B-2" in the nature of a demurrer to the evidence which were offered at the close of plaintiff's evidence and at the close of all the evidence respectively. Parker-Washington Co. v. Dennison, 267 Mo. 199, 183 S.W. 1041; Bisesi v. Farm & Home Savings & Loan Association, 231 Mo.App. 897, 78 S.W.2d 871. (2) The court erred in striking from defendant's second amended answer the 2nd paragraph thereof which pleaded that plaintiff's cause of action was barred by Sec. 1014, R S. 1939. Same authorities as cited under point (1) above. (3) The court erred in giving plaintiff's Instruction No. 1 for the reasons: (a) That said instruction was not limited to recovery of damages based upon an estimated cost of a viaduct of $ 60,000; recovery was allowed upon the theory that there was no limit placed upon such cost. Wood v. Saylor Timber Co., 67 S.W.2d 826; State ex rel. v. Beach, 325 Mo. 178, 28 S.W.2d 105; Miller-Franklin & Co. v. Gentry, 230 Mo.App. 892, 79 S.W.2d 470; City of Ft. Myers v. State, 110 So. 97, 103; Yuma County Water Users Association v. Schlecht, 275 F. 888; 17 C. J. S., pp. 739-741. (b) Because said instruction places upon the jury the burden of construing a written instrument and submits a question of law. Wright v. Fonda, 44 Mo.App. 634; Carroll v. Campbell, 110 Mo. 557; Macklin-Fogel Const. Co., 326 Mo. 38, 31 S.W.2d 14; Gillioz v. State Highway Comm., 153 S.W.2d 18. (4) The court erred in refusing to give defendant's requested instruction lettered "B" for the reason that plaintiff's cause of action is barred by the Statute of Limitations. Same authorities as cited under point (1). (5) The court erred in giving defendant's requested instruction lettered "D" for the reason that the contract was limited in cost to approximately $ 60,000. Same authorities as cited under point (3)(a). (6) The court erred in refusing defendant's requested instruction lettered "E" for the reason that there was evidence from plaintiff's witness Miller and defendant's witness Cromwell to the effect that the Park Board informed plaintiff that the cost of the viaduct was limited to approximately $ 60,000. Same authorities as cited under point (3).

Hogsett, Trippe, Depping & Houts and J. F. Allebach for respondent.

(1) This is a suit to enforce a promise to pay money in writing and the ten-year Statute of Limitations is applicable. Sec. 1013, R. S. Mo. 1939; Parker-Washington Co. v. Dennison, 267 Mo. 199, 183 S.W. 1041; Knisely v. Leathe, 256 Mo. 341, 166 S.W. 257; Bisesi v. Farm & Home Savings & Loan Association, 78 S.W.2d 871. (2) The ten-year Statute of Limitations applies to a cause of action based upon a written promise to pay money or property, whether the amount of the payment due is certain or contingent. Brown v. Irving, 269 S.W. 686; Herweck v. Rhodes, 34 S.W.2d 32; State ex rel. Enterprise Milling Co. v. Brown, 208 Mo. 613. (3) Respondent is entitled to recover the full amount of the commission which appellant promised, in writing, to pay, less any expenses respondent would have had to assume had the bridge been built according to the contract and approved plans. Walker v. Lundstrom, 132 Mo.App. 267; Bintz v. Mid-City Park Corp., 229 N.Y.S. 390; Schwender v. Schrafft, 246 Mass. 543, 141 N.E. 511. (4) Plaintiff's Instruction P-1 correctly informed the jury that the contract placed no limit on the amount the viaduct would cost because the contract so provides. However, if the contract is ambiguous or open to different constructions in this respect any such doubt must be resolved against the appellant since the contract was fully prepared by appellant's attorneys. Fulkerson v. Great Lakes Pipe Line Co., 227 Mo.App. 882, 60 S.W.2d 71; State ex rel. Central Life Ins. Co. v. McElhinney, 232 Mo.App. 107, 90 S.W.2d 124. (5) Requiring the jury to find in plaintiff's Instruction P-1 "that, by the terms of said contract, no limit was put on the amount that said viaduct was to cost" was not error because of appellant and respondent interpreting the contract differently in this respect. Wirtel v. Nuelle, 27 S.W.2d 501; Sternberg v. Winfield Levee & Drain. Dist., 11 S.W.2d 54; Glaser v. St. Louis University, 293 S.W. 432.

Boyer, C. Sperry, C., concurs.

OPINION

BOYER

Defendant city appeals from a judgment in favor of McIntyre in the sum of $ 2110. The main question for determination on appeal is whether the five or ten-year Statute of Limitation applies to plaintiff's cause of action as shown by the petition and the evidence. A written contract between the parties is involved in the suit. Plaintiff alleged a breach of this contract and contends that his cause of action is founded upon a writing for the payment of money within the meaning of Section 1013, Revised Statutes Missouri 1939, and that the ten-year Statute of Limitation applies. Appellant contends to the contrary and claims that the cause of action is for damages on account of the alleged breach of the contract in question and is barred by Section 1014, Revised Statutes 1939, because suit was not filed within five years after the cause of action accrued. The parties differ as to the nature of the action and the character of the written contract mentioned in the petition, shown in evidence, and involved in the suit. It is therefore deemed advisable that the petition and the contract be fully set forth, together with the substance of the other pleadings and the evidence.

The petition was filed in the Circuit Court of Jackson County, August 25, 1939, and omitting caption and signatures, it reads as follows:

"Plaintiff for his cause of action against defendant states:

"The defendant is now and at all times herein mentioned was a municipal corporation duly organized and existing according to the laws of Missouri, and having a special charter pursuant to the provisions of the Constitution of Missouri. Plaintiff is now and at all times herein mentioned was an architectural engineer.

"On June 8, 1932, a contract was made and entered into and signed by defendant and plaintiff by the terms of which defendant employed the plaintiff, and plaintiff accepted employment, to plan, design, direct and supervise the construction of a viaduct to be constructed by the defendant in Swope Park connecting the Blue River Road with a road leading to the county highway on the south end of said Swope Park. Defendant agreed to pay plaintiff as compensation for his services the sum of five per cent of the total amount of the actual cost of the construction of said viaduct.

"Ever since said contract was made and entered into as aforesaid, plaintiff has at all times been willing, ready and able to comply with, carry out and perform all the obligations and duties imposed upon and required of him under and by virtue of the terms of said contract, but the defendant in direct violation thereof, has breached said contract in the following particulars, to-wit:

"After said contract was entered into plaintiff prepared all maps, plans and specifications required in connection with the construction of said viaduct and submitted said maps, plans and specifications to the defendant, and said maps, plans and specifications were fully approved by defendant, by its Board of Park Commissioners and its engineers; thereafter the defendant delayed, neglected and refused to proceed to advertise for bids for the construction of said viaduct or to construct said viaduct, and refused to permit plaintiff to perform the remainder of the services required of him under said contract, and in direct violation of plaintiff's said contract defendant caused to be installed at the place described in the aforesaid contract as the location for said viaduct a dirt fill.

"Plaintiff states that had defendant not breached said contract as aforesaid and plaintiff had been permitted and allowed to complete the services provided for in said contract plaintiff would have derived and made a profit out of the services called for in said contract in the sum of $ 7250, the total actual reasonable cost of said viaduct would have been $ 165,000, and had defendant not breached said contract plaintiff would have received as compensation the sum of $ 8250, of which sum his profit would have been $ 7250. Defendant has paid plaintiff the sum of $ 2700 and on June 2, 1939, refused to pay plaintiff any further compensation.

"By reason of the acts and conduct on the part of defendant in breaching plaintiff's said contract as aforesaid, he has by the direct result thereof been damaged in the sum of Four Thousand Five Hundred Fifty Dollars ($ 4550).

"WHEREFORE, plaintiff prays judgment against defendant in the sum of Four Thousand Five Hundred Fifty Dollars ($ 4550) with interest thereon from June 2, 1939, together with his costs in this behalf expended."

Defendant's second amended answer admits that defendant is a municipal corporation with a special charter, but denies generally the other allegations of the petition. And for further answer states that plaintiff's cause of action, if any, is barred by the Statute of Limitations in that the same is of that class of actions upon which suit must be brought within five years after the accrual thereof as provided by Section 1014, Revised Statutes Missouri 1939, and that the present action was not brought until more than five years thereafter. The answer further...