Negley B. Calvin, Inc. v. Cornet, 32787

• Decision Date: 19 March 1968
• Docket Number: No. 32787,32787
• Citation: 427 S.W.2d 741
• Parties: NEGLEY B. CALVIN, INC., a Corporation, Plaintiff-Respondent, v. James V. CORNET, Defendant-Appellant.
• Court: Missouri Court of Appeals

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.

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 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 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 each piece of equipment used in the prosecution of the work. For example, plaintiff included as part of its cost of doing the job a flat charge of.$7.00 for each four it used a back hoe owned by it. Defendant maintains that the plaintiff is not entitled to include any charge for the use of such equipment as part of its cost of performing the work, citing Oliver L. Taetz, Inc. v. Groff, 363 Mo. 825, 253 S.W.2d 824 and S & H Concrete Construction Co. v. Genova, Mo.App., 384 S.W.2d 816. In the Taetz case, where the written contract provided that the contractor was to be paid for, '* * * all labor incorporated in the work * * *' plus a percentage of 10% for profit and another of 4% for overhead, the contractor added to each hour paid his plumbing foreman 20cents above his hourly rate of pay, to the second plumber 15cents above his hourly rate, and 10cents above the hourly rate paid the third plumber. According to the opinion, these amounts were not paid to the employees and were retained by the contractor for the use of trucks that were equipped with large tools and other equipment used to do heavy plumbing. As the court pointed out, there was nothing in the construction contract that provided for such charges, and quoting from Shaw v. G. B. Beaumont Co., 88 N.J.Eq. 333, 102 A. 151, 153, 2 A.L.R. 122, it stated (253 S.W.2d 829, 830): '* * * These trucks were a part of the equipment of the contractor, and in the absence of an agreement to pay for the same these charges are not proper as it is the duty of the contractor to 'furnish all the tools and necessary appliances for the work contracted to be done.' * * *' In the S & H Concrete Construction case, supra, the contract provided that the contractor was to rehabilitate a building in certain respects and was to paid, '* * * the cost of its labor and material expended and $25.00 for each day of work. * * * ' The contractor attempted to include in such costs an expense for tools purchased, under the heading of '* * * 'materials furnished and paid.' * * *' In disallowing such charges the court there stated (384 S.W.2d 819): '* * * It is the established rule that where contracting parties are operating under a 'cost plus contract,' unless there is an agreement obligating the recipient of the work to pay for tools and equipment, such charges are not proper since it is the duty of the contractor to 'furnish all the tools and necessary appliances for the work contracted to be done.' Oliver L. Taetz, Inc. v. Groff, 363 Mo. 825, 253 S.W.2d 824. * * *'

Shaw v. G. B. Beaumont Co., 88 N.J.Eq. 333, 102 A. 151, cited in the Taetz case, involved a long and complicated account between a land owner and a contractor growing out of a contract for the construction of an apartment house, under which the contractor was to be paid the cost of the building plus 10% but not to exceed $42,000. The master to whom the case was referred for an accounting disallowed the contractor's claim for tools, such as ladders, mortar tubs, etc., used in the construction of the building, but whether the amount claimed by the contractor was for their purchase price or an amount for their use does not appear. In affirming the disallowance the New Jersey Court of Errors...