Minks Bros. v. Gilloiz

• Decision Date: 07 December 1923
• Docket Number: No. 3499.,3499.
• Citation: 256 S.W. 516
• Parties: MINKS BROS. v. GILLOIZ.
• Court: Missouri Court of Appeals

256 S.W. 516

MINKS BROS. v. GILLOIZ.

No. 3499.

Springfield Court of Appeals, Missouri.

December 7, 1923.

Appeal from Circuit Court, St. Clair County; C. A. Calvird, Judge.

Suit by Minks Bros. against M. E. Gilloiz. Judgment for plaintiffs, and defendant appeals, Reversed.

James E. Sater, of Monett, for appellant. W. H. Plaster, of Collins, and Lee E. Crook and W. A. Dollarhide, both of Osceola, for respondents.

BRADLEY, J.

This is a suit on an account for gasoline, oil, work, and material furnished by plaintiffs. The cause was commenced in a justice of the peace court and was appealed to the circuit court, where it was tried before the court without a jury, resulting in a judgment in favor of plaintiffs, from which the defendant appealed.

The defense is that the gasoline, oil, etc., were furnished to the Kirkham Construction Company, an independent contractor, used by that company, and that defendant is in no manner responsible. Defendant, who lived at Monett in Barry county, had the contract from the state highway department for the construction of a road in St. Clair county. Defendant sublet the contract to the Kirkham Construction Company. The contract between defendant and the construction company contained the following provision:

"That for and in consideration of the payments to be made by the said party of the first part, hereinafter called the general contractor, to said party of the second part, hereinafter called the subcontractor, said subcontractor agrees to do at his own proper cost and expense all the required work on the state road from Osceola, St. Clair county, north and south, total length of the improvements being 6.233 miles, located in St. Clair county, Missouri, as shown on the plans and the specifications bearing the signature of the state highway engineer, of Missouri, and the designation, project No. 2074, which are made a part hereof and in full conformity herewith."

Then follows specifications of the work to be done, and a provision that it should be done under the supervision and to the satisfaction of the state highway department, and subject to the inspection of the United States Secretary of Agriculture. Then follows this provision:

"The general contractor agrees to pay, for the work to be performed, the unit prices named in the following schedule of prices on estimates furnished to the said general contractor by the engineer in charge, said estimates to be made on or about the first of each and every month, for which the subcontractor shall receive 90 per cent. of the contract price, on or about the first of each and every month, as these estimates are furnished from this day on by the project engineer, on presentation of sworn statements that all bills for labor, material, etc., incurred in the prosecution of the work to that date have been paid. Upon completion and final acceptance of this work by the state highway department (and by the United States Secretary of Agriculture or his authorized agents) the remaining 10 per cent. of these payments shall be made by the said general contractor."

Following the last quoted provision is the schedule of prices.

Plaintiffs charged the account as made to the Kirkham Construction Company, and the account filed with the justice for suit was against the construction company. Summons, however, was issued against defendant, and he appeared and defended, but filed no formal pleading. Plaintiffs proceeded on the theory that the construction company was the agent of defendant, and that the merchandise, etc., was in fact furnished to defendant.

The evidence relied on, to hold defendant, is that he paid an account, made by the construction company, of $19.21 to plaintiffs. It further appears that defendant told one of plaintiffs in a telephone conversation that he would "take care of that account," and further confirmed this promise in a letter concerning, in the main, the subject of the telephone conversation. Also plaintiffs were permitted, over objection and exception, to prove that members of the construction company in making the account said that it was for defendant and that they were the agent's of defendant.

It appears that the check of defendant which went to pay the $19.21 account was delivered by a Mr. Kirkham, a member of the construction company. John Minks, who was connected with the bank, testified that the construction company...