Myers v. Union Electric L. & P. Co.

• Decision Date: 22 December 1933
• Docket Number: No. 31576.,31576.
• Parties: R.S. MYERS and M.L. GUTHRIE v. UNION ELECTRIC LIGHT & POWER COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

66 S.W.2d 565

R.S. MYERS and M.L. GUTHRIE v. UNION ELECTRIC LIGHT & POWER COMPANY, a Corporation, Appellant.

No. 31576.

Supreme Court of Missouri.

Division One, December 22, 1933.

Appeal from Miller Circuit Court. — Hon. R.A. Breuer, Judge.

REVERSED AND REMANDED.

Theodore Rassieur, George M. Rassieur and Alfred C. Wilson for appellant.

(1) When a written contract requires that performance of work meet certain specifications, as determined by Government engineers, it is a condition precedent to recovery under the contract that the Government engineers approve the work, and plaintiffs are not entitled to recover on their contract when the evidence not only fails to show an approval of the work by the Government engineers, but affirmatively shows that plaintiffs' work was rejected by the Government engineers because the work did not meet the requirements of the specifications contained in the contract. Dinsmore v. Livingston County, 60 Mo. 241; Hunt v. Owen Bldg. & Inv. Co., 219 S.W. 138; Berger Mfg. Co. v. Crites, 178 Mo. App. 218, 165 S.W. 1163; Heidbrink v. Schaffner, 147 Mo. App. 632, 127 S.W. 418; St. Joseph Iron Co. v. Halverson & Co., 48 Mo. App. 383. (2) The written contract provided for settlement for the area cleared according to engineers' estimates based on measurements made during the progress of the work, and such estimates were made and settlements based thereon accepted without complaint. There being no evidence of fraud or mistake in the estimates so made, it was error to admit the testimony of others as to their estimate or guess as to the total number of acres cleared. Williams v. Ry. Co., 112 Mo. 463, 20 S.W. 631; Chapman v. Railroad Co., 114 Mo. 542, 21 S.W. 858; McGregor v. Ware Construction Co., 188 Mo. 611, 87 S.W. 981; St. Joseph Iron Co. v. Halverson & Co., 48 Mo. App. 383; Eldridge v. Fuhr, 59 Mo. App. 44; Mackler v. Railroad Co., 62 Mo. App. 677; Leffler Bros. v. Lane & Co., 167 N.C. 267, 83 S.E. 463; 9 C.J. 826. (a) An objection to such testimony clearly made need not be repeated to subsequent similar testimony. McKee v. Rudd, 222 Mo. 344, 121 S.W. 312. (3) Instructions are erroneous which entirely ignore the written contract of the parties providing for settlement for the area cleared on the basis of engineers' estimates thereof, which estimates the evidence showed were made and accepted without complaint and which were not impeached by evidence of fraud or mistake. See cases cited supra 2. (4) The acceptance of payments for work done based on engineers' estimates furnished as required by contract estopped plaintiff from disputing the correctness thereof. McGregor v. Ware Construction Co., 188 Mo. 611, 87 S.W. 981.

Baker & Baker and Rubey M. Hulen for respondents.

(1) Contract between plaintiffs and defendant provided a remedy in the event United States Government engineers refused to accept project as completed by plaintiffs. Defendant adopted the remedy, provided by the contract, completed the work to meet United States Government engineers requirements, filed counterclaim for expenses incurred, produced evidence in support thereof issue was submitted to the jury and full allowance made for expenses. (a) Defendant is bound on appeal by theory of case adopted in trial court. Allen v. Meredith. 32 S.W. (2d) 103: Hof v. St. Louis Transit Co., 213 Mo. 445: Hudson v. Wabash, 101 Mo. 13; Packer v. Ry. Co., 265 S.W. 119; Maas v. Moon Motor Car Co., 258 S.W. 50. (b) Evidence offered by plaintiffs, as to acreage cleared was in accord with contract received without objection and sufficient to support verdict. 27 Mo. Digest — Trial 156-62; Davenport v. Electric Co., 242 Mo. 122; Smith v. Ohio Miller Inc. Co., 6 S.W. (2d) 928; Faulkner v. Western Union Tel. Co., 13 S.W. (2d) 1092. (2) The contract does not provide for settlement according to "engineers' estimates." but calls for payments twice monthly on "preliminary" inspection of "company's representatives." Wentzel v. Lake Dev. Co., 48 S.W. (2d) 200; Smith v. Ohio Miller's Mut. Fire Ins. Co., 6 S.W. (2d) 920; Milling Co. v. Fid. & Cas. Co., 161 Mo. App. 185. (3) The instructions given on behalf of the plaintiffs were proper declarations of law under the pleadings and evidence. Wentzel v. Lake Dev. Co., 48 S.W. (2d) 199; Meffert v. Lawson, 315 Mo. 1091; Diehl v. Fire Brick Co., 299 Mo. 641, 253 S.W. 984; Barz v. Fleischmann Yeast Co., 271 S.W. 364; Payne v. Railroad Co., 136 Mo. 594; State v. Musick, 101 Mo. 271; State v. Patrick, 107 Mo. 174; State v. Alexander, 119 Mo. 461; State v. Paxton, 126 Mo. 514; State v. Good, 132 Mo. 125; State v. Taylor, 134 Mo. 148; Comstock v. State, 14 Neb. 209; Fullington v. Ozark Poultry Supply Co., 39 S.W. (2d) 783. (a) Plaintiffs' Instruction 3 was a proper declaration of law. Crapson v. Wallace Bros., 81 Mo. App. 680; Deatherage Lumber Co. v. Snyder, 65 Mo. App. 568; Am. Paper Products Co. v. Carroll, 234 S.W. 800. (4) The record in this case does not show facts constituting estoppel and is not pleaded by the defendant in its answer. Kinloch v. City of St. Louis, 268 Mo. 485.

HYDE, C.

This is an action for a balance of $9,941.20 claimed to be due under a contract for clearing timber in the Bagnell Dam reservoir. Defendant set up a counterclaim of $1,015.32 for work alleged to have been done by it to complete the contract. Plaintiffs obtained a verdict of $8,450. From judgment entered therefor, defendant has appealed.

The contract sued upon was made pursuant to the following advertisement:

"Advertisement No. 41.

"At 10 A.M., November 23, 1929, at the office of the Union Electric Light and Power Company, Stone and Webster Engineering Corporation, Agents, at Bagnell Dam near Bagnell, Missouri, sealed proposals will be received for clearing of reservoir area on the following tract of property:

"Parts of sections 14, 15, 22 and 23, T 40 N, R 16 W, on left bank of Osage River in vicinity of Birdsong School, Miller County, formerly owned by T.J. Howser, Jasper Howser and Lon Howard and more recently by Kansas City Joint Stock Land Bank, and containing approximately 90 acres of clearing."

The specifications for doing the work were as follows:

"Class A. Clearing will include the area between a line 15' outside of the 660 ft. contour and the 628 ft. contour, according to U.S. Survey datum. In this area all timber, brush and floatable material is to be cut and burned clean. Stumps are to be not more than 12 inches high on up hill side... .

"Class B. Clearing will include the area below the 628 ft. contour. In this area timber is to be so cut that no portion is above elevation 628. Brush not extending above elevation 628 need not be cut, but the limbs from felled timber and all floatable material is to be burned. The logs of large trees that cannot be burned to advantage are to be securely anchored to live stumps, using No. 9 galvanized wire. 1½" staples are to be used when necessary to keep the wire from slipping... .

"All work will be subject to inspection and direction of the engineers. All areas will be measured by the engineers upon completing of the clearing... . Payments for the work done will be made semi-monthly on engineers estimate. 85% of estimate will be paid to contractor and 15% retained until final inspection and acceptance by the engineers."

Plaintiffs made a written proposal containing the following statement:

"Having made a field inspection of the work to be done, I propose to clear reservoir area described in advertisement No. 41, dated November 14, 1929, in accordance with specifications dated September 23, 1929, for unit prices given below.

"Class A (above 628 ft. contour).

"Making no allowance for salvage $40.00 per acre.

"Class B (below 628 ft. contour).

"Making no allowance for salvage $40.00 per acre."

Thereafter, a contract was entered into between plaintiffs and defendant, such parts of which are material to this controversy, and were as follows:

"2. The land to be included in this agreement, and hereinafter referred to as lands allotted to contractor, are described in Advertisement No. 41, copy of which is attached hereto and made a part hereof.

"3. That the said work shall be performed by contractor in a good, proper and workmanlike manner without injury to adjacent lands, and in such a way as to meet satisfactorily the requirements of the federal license granted to and owned by the Union Electric Light and Power Company for the construction and maintenance of a dam on the Osage River at or near Bagnell, Missouri, as determined by the engineers and representatives of the United States in charge of such matters... .

"7. It is further agreed and covenanted that if at any time during the continuance of the contract the Company is satisfied that the contractor is careless or incompetent, is not prosecuting the work with promptness or diligence, or is failing in any way to comply with this contract, its specifications, or drawings, the Company shall have the right after having first given the contractor two days' notice in writing of such intention, to go immediately upon the work, exclude the contractor and his employees, retain or remove the contractor's tools and implements and enter into other contracts for the completion of said work or complete the work itself, retaining out of any moneys due the contractor a sufficient amount to reimburse the Company for any extra cost in the execution, or in recontracting for the execution of this work... .

"12. The Company agrees to pay to the contractor for work herein mentioned, upon terms herein set out, $40.00 per acre for Class `A' clearing and $40.00 per acre for Class `B' clearing, said payments to be made the contractor on semi-monthly estimates made on the first and fifteenth days of each month for all work completed within the next preceding semi-monthly period, in accordance with the preliminary inspection of the Company's representatives to the amount of 85% of the work set forth in said estimate, the...