Moore v. Board of Regents for the Normal School In District Number Two

• Decision Date: 04 January 1909
• Citation: 115 S.W. 6,215 Mo. 705
• Parties: ANDREW A. MOORE et al. v. BOARD OF REGENTS FOR THE NORMAL SCHOOL IN DISTRICT NUMBER TWO, Appellant
• Court: Missouri Supreme Court

115 S.W. 6

215 Mo. 705

ANDREW A. MOORE et al. v. BOARD OF REGENTS FOR THE NORMAL SCHOOL IN DISTRICT NUMBER TWO, Appellant

Supreme Court of Missouri, Second Division

January 4, 1909

Appeal from Lafayette Circuit Court. -- Hon. Samuel Davis, Judge.

Affirmed.

J. W Suddath and William Aull for appellant.

(1) A contractor working under a contract providing that he is to be paid only on the completion of the work, and, if he quits the owner may complete building at the contractor's cost and recover all excess, if any, off of the contractor, may nevertheless, upon termination of the contract, either by himself or the owner, sue in quantum meruit or quantum valebat for the amount of work done and material furnished before the work is completed, and can recover the actual value of his work and materials upon the schedule of prices named in the contract, less any damages he may have caused the owner by the violation of the contract. Williams v Railroad, 112 Mo. 498; Yeats v. Ballentine, 56 Mo. 530; St. Francois Co. v. Marks, 14 Mo. 379; Lamb v. Brolaski, 38 Mo. 53; Haysler v. Owens, 61 Mo. 270; Marsh v. Richards, 29 Mo. 105; Fleischmann v. Miller, 38 Mo.App. 177; Gregg v. Dunn, 38 Mo.App. 283; Globe L. & H. Co. v. Doud, 47 Mo.App. 439; Linnenkohl v. Winkelmeyer, 54 Mo.App. 570; Heman v. Improvement Co., 58 Mo.App. 480; Bassett v. Sanburn, 63 Mass. 58; Hay v. Bush, 34 So. 692; Mueller v. Gillick, 66 Mo.App. 500; Aetna I. & S. Works v. Kossuth Co., 44 N.W. 215. (2) The opinion of the architect as to the character or kind of work or material, if provided for in the contract, is absolute and final, except when guilty of fraud, and the burden is on the party charging fraud to prove it. Williams v. Railroad, 112 Mo. 488; McCormack v. St. Louis, 166 Mo. 339; Board of Education v. National Surety Co., 183 Mo. 183; McGregor v. Construction Co., 188 Mo. 623; Snoqualine Realty Co. v. Moynihan, 179 Mo. 648. (3) The penalties incurred by a contractor for non-performance may be set up against his claim on quantum meruit. Marshall v. Hamm, 2 Harr. (N. J.) 425; Ramlose v. Dollamn, 100 Mo.App. 347; 22 Ency. Pl. & Pr., 1382; Malone v. Philadelphia, 147 Pa. St. 46. (4) If damages done by failing to comply with the contract exceed the value of the labor done and material furnished, defendant may recover excess. Clapper v. Mendell, 96 Mo.App. 40; Flieschman v. Miller, 38 Mo.App. 177. (5) When the cause of delay is removed, the contractor must use reasonable diligence to complete the work under the contract. And if he does not do so, he is liable for damages and in this case is liable to have his employment terminated. 30 Am. and Eng. Ency. Law (2 Ed.), 1256; McGown v. Co., 121 U.S. 575; Granson v. Tober, 75 Ill. 540; Darmat v. Fuller, 120 N.Y. 554; Pittsburg Co. v. Natl. Tub. Work Co., 184 Pa. St. 251; Interocean Co. v. Sheriffs, 54 Wis. 202. And this is so regardless of the alleged delay by strike, weather and architect. 30 Am. and Eng. Ency. Law (2 Ed.), 1257. (6) When a contractor undertakes to do certain work (as the erection of a building) within a limited period, the exercise of proper prudence on his part requires that the work be begun within such a reasonable time after the execution of the contract as will enable him to finish it within the time limit, notwithstanding unusual, heavy, or constant rains; and when it is shown in such a case that the contractor delayed the beginning of the work to a period after which he could only have finished within the time had the season been an ordinary one, it was held to be error on the part of the trial judge to charge the jury, in effect, that if the contractor commenced the work at a period which would have enabled him to finish it within the time limit under ordinary conditions but was thereafter prevented from completing it in the given time, because of the unusual, heavy and constant rains, such causes would be a sufficient excuse for a failure to construct the building within the time limit. Cannon v. Hunt, 113 Ga. 501.

O. L. Houts for respondents.

(1) The verdict was not excessive. It is only where the amount awarded exceeds the aggregate of items testified to by the witnesses, that the verdict is excessive. Badgley v. St. Louis, 149 Mo. 122. (2) There was no error in the instructions given. The court did not undertake to cover the entire case in a single instruction, but by a series of instructions submitted the issues of fact in the case to the jury. In one of the series the jury were instructed to consider the instructions "all together and not as separate or distinct statements of the law for or against either plaintiffs or defendants." In the absence of that instruction this court would have assumed that the instructions were considered together by the jury. Considered as a whole the instructions were far more favorable to defendants than they had a right to ask. Lange v. Railroad, 208 Mo. 475; Cornovski v. Railroad, 207 Mo. 278; Johnson v. Railroad, 203 Mo. 415; Deschner v. Railroad, 200 Mo. 332; Lee v. Railroad, 195 Mo. 428; Norton v. Kramer, 180 Mo. 544; Dewiese v. Mining Co., 128 Mo. 426, affirming same case reported in 54 Mo.App. 476; Buchman v. Railroad, 100 Mo.App. 30.

GANTT, P. J. Fox, and Burgess, JJ., concur.

OPINION

GANTT, P. J.

Plaintiffs sued on a quantum meruit for the reasonable value of labor performed and material furnished.

The petition states in substance that on the 14th day of November, 1903, defendants entered into a written contract with plaintiffs for the erection by plaintiffs of what is known as the gymnasium building at Warrensburg, Missouri, and to be used in connection with the State Normal School for Normal School District No. 2; that in pursuance of the contract plaintiffs entered upon the construction of the building and had constructed a portion thereof, when, on the 16th day of September, 1904, defendant wrongfully declared said contract at an end and prevented plaintiffs from completing the building; that on and prior to said date plaintiffs had performed work and furnished material in the construction of said building, and had delivered upon the premises, for the purposes of being used in said building, material of the reasonable value of $ 22,086.95; that plaintiffs had received of defendants $ 9,008, leaving a balance due and unpaid of $ 13,078.95, for which, with costs, plaintiffs asked judgment.

Defendant for amended answer to the petition admitted that the plaintiffs were partners as alleged in the petition, doing business under the firm name of Moore Brothers; denied that defendant wrongfully terminated the contract; denied that the labor performed and material furnished by plaintiffs were of the reasonable value of $ 22,086.95, and admitted the payment of $ 9,008. The answer then denied all the other allegations of the petition not specifically admitted. The answer then set up the contract, pleading specifically article 8 of the contract, providing that in case of the failure of the plaintiffs to complete the building within the time limited in the contract they should pay to defendant $ 20 a day for each week day intervening after said date until the completion of the work, "provided they are not delayed by strikes, accidents, the unusual action of the elements or other unavoidable circumstances;" article 4, providing that, in case of the failure of the plaintiffs to proceed with the work and furnish proper labor and material, the architect or board should, on giving ten days' written notice, have the right to terminate the contract, take possession and complete the building, and that the plaintiffs should make good to the board for the plaintiffs' failure, including all reasonable expenses, charges, damages and costs of litigation; and article 7, providing that plaintiffs should receive $ 47,400 for the completion of the building. The answer then set up that plaintiffs did not make proper progress with the erection of the building as required by the contract, and stated that defendant on giving plaintiffs notice on the 16th day of September, 1904, terminated the contract, took possession of the building and material on the ground, and proceeded to complete the building. The answer then stated that defendant had and would consume 313 days in the completion of the building and asked to have set off against plaintiffs' claim a penalty of $ 20 for each of said days, amounting in the aggregate to $ 6,260. Defendants stated in the answer that they had already expended in the work of completing the building $ 32,181.65, and that they expected to and would expend the further sum of $ 20,087.90, making a total expenditure of $ 61,277.73, in the completion of the building, and $ 13,887.73 in excess of the contract price, which defendants also asked to have set off against plaintiffs' demand. Defendants further alleged that they had expended and proposed to expend in the way of litigation in connection with the construction of the building the sum of $ 3,250, which sum they also asked to have set off against plaintiffs' demand. Defendants alleged that the aggregate of these various sums amounted to $ 23,387.73, for all of which they prayed judgment against the plaintiffs.

It was not alleged in the answer that the labor performed and material used in the construction of the building by plaintiffs up to the time defendant terminated the contract were not in compliance with the contract. The answer did not ask to recover back any portion of the money already paid by defendant to plaintiffs. It did not allege that the architect McDonald or the Board condemned any material furnished by plaintiffs for the construction of the building. The answer is voluminous and covers forty-eight printed pages.

Plaintiffs in their reply admitted the execution...