Negley B. Calvin, Inc. v. Cornet, No. 32787

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: PER CURIAM; ANDERSON, P.J., WOLFE, J., GEORGE W. CLOYD
• Citation: 427 S.W.2d 741
• Parties: NEGLEY B. CALVIN, INC., a Corporation, Plaintiff-Respondent, v. James V. CORNET, Defendant-Appellant.
• Docket Number: No. 32787
• Decision Date: 19 March 1968

Page 741

427 S.W.2d 741 NEGLEY B. CALVIN, INC., a Corporation, Plaintiff-Respondent,
v.
James V. CORNET, Defendant-Appellant. No. 32787. St. Louis Court of Appeals, Missouri. March 19, 1968.
Motion for Rehearing or for Transfer to Supreme Court Denied
April 19, 1968.

Page 742

Ludwig Mayer, Clayton, for defendant-appellant.

Love & Mann, Joe Bill Carter, Clayton, for plaintiff-respondent.

DOERNER, Commissioner.

Defendant appeals from a judgment rendered in favor of plaintiff for $1899 on plaintiff's claim, and in favor of plaintiff and against defendant on defendant's counterclaim, in a suit growing out of an oral construction contract.

Plaintiff Negley B. Calvin, Inc., apparently a one-man corporation, was engaged in the business of laying drain or sewer pipe. Defendant James V. Cornet was a land developer and building contractor. Pursuant to an oral contract plaintiff installed sanitary and storm sewers and performed certain related work for defendant in a subidivision named Saxon Manor which defendant developed in St. Louis County. Essentially there were only two contested issues in the case, the first of which concerned the terms of their oral contract. Plaintiff's evidence was that he first offered to perform the work on a cost plus 10% plus 10% basis; that defendant objected to those terms; that he then offered to do the work for cost plus 10% plus 5%; and that defendant accepted that proposal and directed him to start immediately. Plaintiff's evidence showed that the 10% was for profit and the 5% for his overhead. Defendant's evidence was that under the agreement reached payment was to be made on a unit price basis for the work performed, and that the unit prices were to be those contained in two written contracts previously entered into between the parties, one for similar work performed by plaintiff at defendant's Out Post Estates subdivision and the other for work at defendant's Cricklewood subdivision. The issue as to the terms of the oral contract was submitted to the jury, which obviously decided it in favor of plaintiff. No point

Page 743

regarding that feature of the case is raised in defendant's brief.

The second dispute between the parties concerned the amount, if any, which remained due plaintiff after the admitted receipt by it of certain payments on account concededly made by defendant. Under its version of the terms of the oral contract plaintiff maintained (after reducing its demand during the course of the trial) that defendant owed it $1899. Under his version of the terms of the oral contract defendant asserted that computed on the unit price basis the total amount to which plaintiff was entitled for the work performed in Saxon Manor was either $5735.43 or $5579.53, the variation being due to slight differences in the unit prices in the written contracts for the Out Post Estates and Cricklewood jobs; that he had theretofore paid plaintiff a total of $7825.08; and that he had therefore overpaid plaintiff in the amount of $2089.66, for which he counterclaimed. From the verdict it is likewise clear that the jury decided this issue in favor of plaintiff.

Defendant devotes all of its 94 page brief to the second issue in the case. In its points relied on, under Roman numeral I, in two paragraphs designated as (a) and (b), it is asserted that the verdict in the sum of $1899 is not supported by the evidence, is contrary to plaintiff's evidence, and is based on speculation and conjecture. Each of such of such paragraphs contains various subparagraphs, but neither in the paragraphs nor in the subparagraphs is any statement made as to what action or ruling of the court defendant claims was erroneous, or any reason advanced as to why he contends the court was wrong in any action or ruling sought to be reviewed. Lacking such particularization point I fails to comply with Civil Rule 83.05(a) and (e), V.A.M.R., and presents nothing for appellate review. State v. Rapp, Mo., 412 S.W.2d 120; Martin v. O'Connor, Mo., 406 S.W.2d 41; Ambrose v. M.F.A. Co-Operative Ass'n of St. Elizabeth, Mo., 266 S.W.2d 647; Rose v. Rose, Mo.App., 401 S.W.2d 946; State ex rel. State Highway Commission v. Harrison, Mo.App., 311 S.W.2d 104.

Defendant next maintains that the court erred in admitting in evidence over objection plaintiff's exhibits 10 to 15, inclusive. Each of such exhibits consisted of several printed forms, the first of which was referred to as a summary sheet, and the remainder as daily reports. The daily reports were prepared each day by plaintiff's foreman, on which he recorded the name of each man who worked that day, the number of fours worked by each, a list of all equipment used, the number of hours each was employed, the nature of the work performed, and similar information. The daily reports were delivered to Calvin and at the end of each work week or similar period he prepared, in triplicate, the remaining sheet of each exhibit, which he described as a summary sheet. In addition to the names and number of hours worked by each employee each day and the total for the week, the summary sheet also showed his hourly rate, total wages earned, deduction for social security, and net amount paid each workman; the total of such labor costs for the week; the amount paid for insurance to cover the workmen; the pieces of equipment used, the hours each worked each day, the total hours for the week, the hourly rate charged, the total amount charged for each piece of equipment, and the total for all for the period covered. The uncontradicted testimony was that one copy was retained in plaintiff's files for its records, one kept by Calvin, and the third delivered to defendant, who never voiced any objection or protest concerning them. In fact, defendant introduced as his exhibits a number of the copies sent him. The objection made by defendant to the admission of such exhibits was that they were self-serving records prepared by plaintiff and not original records of its costs. We find no error in the court's ruling. The evidence clearly established that the exhibits were

Page 744

original records, in the nature of a book of account regularly kept in the course of plaintiff's business, and that the entries thereon were made contemporaneously with the events and transactions represented. Accordingly, they were not subject to exclusion as self-serving, and were admissible under the principle of res gestae as are books of account. McKelly v. Metco Products, 354 Mo. 993, 193 S.W.2d 28; Roland v. Gassman, Mo.App., 44 S.W.2d 658; Welch-Sandler Cement Co. v. Mullins, Mo.App., 31 S.W.2d 86. Indeed, so far as the evidence shows they were the only book of account kept by plaintiff.

As stated, one item which went to make up plaintiff's claim was the hourly charge made for...