Ogle v. W. M. Sutherland Building & Contracting Co.

• Decision Date: 07 January 1919
• Docket Number: No. 15337.,15337.
• Citation: 207 S.W. 848
• Court: Missouri Court of Appeals
• Parties: OGLE v. W. M. SUTHERLAND BUILDING & CONTRACTING CO. et al.

207 S.W. 848

OGLE v. W. M. SUTHERLAND BUILDING & CONTRACTING CO. et al.

No. 15337.

St. Louis Court of Appeals. Missouri.

January 7, 1919.

Rehearing Denied January 22, 1919.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

"Not to be officially published."

Action by William T. Ogle against the W. M. Sutherland Building & Contracting Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Douglas W. Robert, of St. Louis, for appellants.

Chas. J. McCauley and Harry H. Haeussler, of St. Louis, for respondent.

ALLEN, J.

This is an" action by a subcontractor to recover a general judgment against the defendant W. M. Sutherland Building & Contracting Company, the contractor for the erection of a building upon real estate in the city of St. Louis belonging to the defendant Waterman Improvement Company, and for the enforcement of a mechanic's lien against the said property of the last named defendant. The cause was referred to a referee, W. S. Campbell, Esq., to try all the issues. In due time the referee filed his report, finding that plaintiff was entitled to recover against the defendant contractor the sum of $1,212.11, with interest, totaling $1,496.92, and that the defendant contractor was entitled to recover against plaintiff the sum of $34, with interest, a total of $44.54, upon a counterclaim interposed by said defendant, recommending judgment accordingly. Upon exceptions to the referee's report the trial court disallowed an item of $95.26 allowed by the referee, overruling other exceptions to the report, and entered judgment against the defendant contractor for $1,454.99, and special judgment against the property of defendant owner, establishing a lien thereon for said amount. From this judgment the defendants prosecute the appeal before us.

The evidence discloses that in the latter part of the year 1909 the defendant Waterman Improvement Company, being the owner of certain lots of ground on Union avenue in the city of St Louis, contracted with the defendant Sutherland Building & Contracting Company for the erection of a small apartment building on said lots, and that the latter company requested plaintiff to present a bid for doing the work of excavating for the cellar or basement thereof. It appears that plaintiff submitted a bid for doing this work, but that before the same was accepted by the defendant contractor the owner abandoned the idea of erecting the small apartment house and decided to erect, in lieu thereof, a larger structure of the same general character. Later the plaintiff was instructed by the defendant contractor to proceed with the excavation for the larger building, and he did so; and it appears that while plaintiff was engaged in doing this work the defendant contractor requested him to present a bid for the digging of certain trenches necessary to the erection of the building, and that upon making such bid the plaintiff was likewise directed to proceed with that work. Plaintiff performed all of the excavating work for the cellar and trenches, and certain extra work in connection therewith, and during the progress thereof was paid the sum of $3,038. Plaintiff claimed that a balance of $1,622.66 was due him, and in due time filed his mechanic's lien account, upon which, in due season, plaintiff instituted this action which proceeds as in quantum meruit.

I. It is unnecessary to make further reference to the evidence pertaining to the merits of the case. Appellants concede that the findings of the referee are conclusive upon us, if supported by substantial evidence. See St. Louis, etc., v. Parker-Washington Co. et al., 271 Mo. 229, 196 S. W. 767; Coombs v. Lumber Co., 197 S. W. 342; Johnston v. Star Bucket Co., 202 S. W. 1143; Roloson v. Riggs, 203 S. W. 973. And as to the merits the only questions raised may be briefly disposed of.

It is said by appellants that the evidence shows that the work was done under two distinct contracts, the items of which are commingled in the account; that the lien was filed more than four months after the excavation of the cellar was completed; and that plaintiff did not fully perform his undertaking, in that he did not complete the work. But we perceive no merit in these suggestions. It quite clearly appears that the excavation for the cellar, the trench work, and the other work done in connection therewith, including the digging of pier holes, elevator pit, etc., was done as one continuous job of work, plaintiff working at the direction and under the supervision of the defendant contractor, and that the lien account was filed in time. There is positive testimony that plaintiff fully completed all of the work; and, as said, the action proceeds in quantum meruit, for the reasonable value of the work, after giving credit for payments made to plaintiff, and the evidence fully sustains the findings of the referee approved by the circuit court.

II. However, the chief insistence of defendants, appellants here, is that the court erred in refusing, on their motion, to enter judgment for plaintiff for the amount of a tender made by the defendant contractor in its answer and deposited in court; defendants contending that this tender was accepted by plaintiff by and through the act of plaintiff's counsel in accepting from a cashier in the office of the circuit clerk the sum of $3, the amount of the filing fee paid by plaintiff at the institution of the suit. In order to make the matter clear, it will be necessary to state the pertinent facts touching the same as shown by the record before us:

The original petition herein was filed on September 1, 1910. On October 6, 1910, the defendant contractor filed its answer, one paragraph of which is as follows:

"That by reason of the premises there was due the plaintiff from the defendant under said agreements the sum of $3,504.99; that this defendant paid to the plaintiff the sum of $3,038, and paid to other parties at the direction of the plaintiff $14.70; that this defendant is entitled to a set-off of $9.25, Wand upon its two counterclaims to a credit of the sum of $24.75, leaving a balance now due from this defendant to plaintiff of the sum of $418.29, which sum this defendant now brings into court and tenders to plaintiff, with $11.16 interest to date, together with the sum of $19.35 costs accrued to date, in full satisfaction of plaintiff's claim, which said sums are to remain in court, to be paid to plaintiff whenever he will accept the same."

And the record recites that on October 7, 1910:

"The defendant Sutherland Company duly tendered and paid into court said sum of $429.45 and $19.35 costs."

It appears that...