Norman Schuman Interiors, Inc. v. Sacks

• Decision Date: 28 March 1972
• Docket Number: No. 34088,34088
• Citation: 479 S.W.2d 200
• Parties: NORMAN SCHUMAN INTERIORS, INC., Plaintiff-Appellant, v. Joseph SACKS, a/k/a Joe Sacks and Jean Sacks, Defendants-Respondents. . Louis District
• Court: Missouri Court of Appeals

Page 200

479 S.W.2d 200

NORMAN SCHUMAN INTERIORS, INC., Plaintiff-Appellant, v. Joseph SACKS, a/k/a Joe Sacks and Jean Sacks, Defendants-Respondents.

No. 34088.

Missouri Court of Appeals, St. Louis District.

March 28, 1972.

Blumenfeld, Kalishman, Marx & Tureen, Philip G. Kaplan, St. Louis, for plaintiff-appellant.

Morris Shenker, Bernard J. Mellman, Cordell Siegel, St. Louis, for defendants-respondents.

PER CURIAM.

This is an appeal by plaintiff Norman Schuman Interiors, Inc., from a judgment of the circuit court of the City of St. Louis dismissing the action after sustaining a motion to dismiss filed by defendants.

The action was filed against Joseph Sacks and Jean Sacks in the circuit court on July 31, 1967. The petition was in two counts. Count I alleged that in March 1965 defendants engaged plaintiff to perform interior decorating and general contracting services in connection with the remodeling of their home at 5835 Lindell Boulevard in St. Louis. It was further alleged that the fee for the general contracting work would be for a nominal amount and the furniture required would be purchased from plaintiff at regular retail prices which would include compensation for plaintiff's interior decorating services; that between March 7, 1967 and April 11, 1967 plaintiff performed substantial work, labor and services, and expended sums for trips, preparation of plans and other items; and that thereafter defendants refused to purchase from plaintiff the furniture required under the agreement and thus prevented plaintiff from being compensated for his services and cash advanced, which services were reasonably worth the sum of $5,000.00, for which sum plaintiff prayed judgment.

Count II incorporated by reference each and every allegation contained in Count I. It was then alleged that plaintiff's services involved creative ideas conceived by plaintiff; that also color schemes and choice of furnishings were devised, compiled and composed by plaintiff which involved the expenditure of time, thought, talent and money; and that defendants used plaintiff's creative work without plaintiff's consent and thereby converted plaintiff's rights in and to said creative work which were of the reasonable value of $5,000.00. It was further alleged that defendants' acts were done willfully, wantonly and maliciously for which plaintiff should recover punitive damages in the sum of $25,000.00. The prayer of Count II was for $5,000.00 actual damages and $25,00.00 punitive damages, together with costs.

On November 3, 1967 plaintiff filed an amended petition which contained three counts. The allegations in Count I were contained in six paragraphs, the first five containing allegations identical to the allegations of the original petition. In Paragraph 6 it was alleged: '6. As a result of defendants' breaches aforesaid, plaintiff has been damaged in the sum of $5,000.00, including lost profits.' (Emphasis supplied.)

In Count II it was alleged that between March 7, 1967 and April 11, 1967 at the special instance and request of defendants, plaintiff performed substantial work, labor and services as set forth in Paragraph 3 of Count I. In Paragraph 3 of Count I it was alleged that it was agreed that the general contracting work would be performed for a nominal fee and that the furniture and furnishings required in connection with the remodeling, refurnishing and refurbishing would be purchased by defendants from plaintiff at regular retail prices which would include compensation for plaintiff's interior decorating services. In Paragraph 3 it was alleged that the reasonable value of plaintiff's services was $5,000.00. Judgment was prayed for said sum and for the costs of the action.

In Count III it was alleged that in performing his services plaintiff developed certain creative ideas, and expended substantial time, thought and money to formulate same. There was a further allegation that plaintiff believed defendants had used this creative work without plaintiff's consent, thereby converting plaintiff's right in and to said creative work. It was then alleged that $5,000.00 was the reasonable value of plaintiff's rights which were converted, and that the defendants' acts were done willfully, recklessly and maliciously. The prayer of the petition was for $5,000.00 actual, $25,000.00 punitive damages, and costs.

On December 5, 1967 defendants filed a motion to dismiss the amended petition. The grounds of said motion were that each count of the petition failed to state a cause of action, and that Count I was barred by the statute of frauds.

Defendant Joseph Sacks died January 23, 1969. Jean Sacks and St. Louis Union Trust Company were thereafter duly appointed co-executors of the estate of Joseph Sacks, and on December 30, 1969 were, on plaintiff's motion, made defendants in their representative capacity.

The motion to dismiss the amended petition was argued and submitted on September 24, 1970 and sustained by the trial court on December 11, 1970. A notice of appeal was timely filed in the trial court, and on March 19, 1971 plaintiff filed an agreed statement approved by the trial court in lieu of a transcript. The case was then set for hearing in this court, and after several extensions of time to file briefs the case was argued and submitted on October 5, 1971.

In sustaining defendants' motion to dismiss the amended petition the court necessarily ruled that the claim set out in Count I of the petition was for the sale of goods and unenforceable under the statute of frauds. (§ 400.2--201, RSMo., V.A.M.S.) Appellant, in its brief, admits that if in Count I it pleaded an...