Ottumwa Bridge Company v. Corrigan

• Decision Date: 28 June 1913
• Parties: OTTUMWA BRIDGE COMPANY v. BERNARD CORRIGAN and CORRIGAN REALTY COMPANY, Appellants
• Court: Missouri Supreme Court

158 S.W. 39

251 Mo. 667

OTTUMWA BRIDGE COMPANY v. BERNARD CORRIGAN and CORRIGAN REALTY COMPANY, Appellants

Supreme Court of Missouri, First Division

June 28, 1913

Appeal from Jackson Circuit Court. -- Hon. W. O. Thomas, Judge.

Affirmed.

Yates & Mastin, Atwood & Hill and Reed & Harvey for appellants.

(1) Where one sues on a written contract, alleging exact and specific performance with its every condition, as here, he may not abandon his cause of action in his reply, nor can he recover on an alleged waiver of the contract provisions which he says he has kept when such issue is first tendered therein. The plea of waiver is inconsistent with the allegation of performance nor can such allegation in the reply, cure the defect in the petition. It is so held in a case exactly on all-fours with the case at bar. Mohney v Reed, 40 Mo.App. 99. This case is expressly approved by the Supreme Court in Moss v. Fitch, 212 Mo. 503. "Where plaintiff sues on a written contract to enforce specific performance thereof, he cannot recover on averments in his reply of an alleged estoppel, which constitute a departure." Hill v. Coal & Mining Co., 119 Mo 9; Ham v. Railroad, 149 Mo.App. 200. (2) It is conceded that respondent did not keep the terms of the contract sued on. This the uncontradicted evidence shows. Moreover the uncontradicted evidence shows that respondent did not keep the contract as modified by the parol agreement of October 8, 1907. The verdict finds that respondent did not keep the modified or substituted contract; for that damages are allowed to appellant by the verdict in the substantial sum of $ 3000, thus placing the matter within the pale of demonstration. Recovery may not be had upon contract and for contract price where admittedly the contract has not been kept. The remedy is in quantum meruit. Marsh v. Richards, 29 Mo. 99; Donney v. Burke, 23 Mo. 228; Eyerman v. Cemetery Assn., 61 Mo. 491; Keith v. Ridge, 146 Mo. 97; Dermott v. Jones, 63 U.S. 262; McVoy v. Wheeler, 6 Port. (Ala.) 201; Harrison v. Franklin, 126 Mo.App. 376. This has been the law in Missouri since 1835. Helm v. Wilson, 4 Mo. 41; Raymond v. Fisher, 6 Mo. 36. (3) "The effect of an extension of or waiver of time for performance is merely to substitute a new time for the old. It does not affect the other provisions of the contract and when the agreement for extension or waiver is silent as to the duration of the extension the law implies that it shall be for a reasonable time." 30 Am. & Eng. Ency. Law, p. 1260. And it is only when the agreement is silent as to time that law implies a reasonable time.

Reed & Reed for respondent.

(1) At the conference on October 8th the parties merely made provision for subletting the contract for the steel for the top two stories, and in no wise made any new agreement regarding the date for completion of the entire steel structure or the delivery of the remaining steel. The lifting from the contract of the provision requiring completion on October 10, 1907, resulted, not by reason of any new agreement to that effect, but solely as a matter of law, which, under the circumstances, thereupon implied that the erection should be completed, not on November 10, 1907, but within a reasonable time after October 8, 1907. Hart v. Carswell Mfg. Co., 116 Ill.App. 159; Smith v. Sanitary, etc., of Chicago, 108 Ill.App. 69; 30 Am. & Eng. Ency. Law (2 Ed.), p. 1259; Cornish v. Sudam, 99 Ala. 621; 2 Woodward (Pa.), 332; Andrews v. Tucker, 127 Ala. 602; Bishop on Contracts (Ed. 1887), sec. 795; Ward v. Haren, 139 Mo.App. 8; Water Co. v. Pierce City, 61 Mo.App. 471. (2) The abrogation of the time provision in the contract, instead of resulting from any express agreement, was effectively accomplished by the conduct of the defendant in continually urging the plaintiff to proceed; maintaining a superintendent over the erection; continuing to make payments on the contract price, and the acceptance of the work when completed. Thereupon the contract provision as to time of performance was eliminated as completely as if it had never been inserted. Construction Co. v. Seymour, 91 U.S. 646; Kraus v. School Trustees, 162 Ind. 278; Crocker-Wheeler v. Varick Co., 104 N.Y. App. 568; Eysler v. Parrott, 83 Ill. 517; McIntire v. Barnes, 4 Colo. 285; Cannon v. Wildman, 28 Conn. 472; Grant & Co. v. Railroad, 51 Ga. 348; Dunn v. Steubling, 120 N.Y. 232; Grannis v. Deeves, 72 Hun, 171; Fowlds v. Evans, 52 Minn. 560; Sinclair v. Talmadge, 35 Barb. 602; Bridge Co. v. Stewart, 134 Mo.App. 618; Burchard v. Alpha Process Co., 45 Pa. S.Ct. 254; Deeves & Son v. Manhattan Co., 195 N.Y. 330; Supply Co. v. Goelet, 133 N.Y.S. 983; Oil Co. v. McCaw Mfg. Co., 70 S.E. 201; Wall v. Storage Co., 112 Mo.App. 659. (3) The reply did not constitute a departure nor contain any new matter inconsistent with the cause of action set forth in the petition, but merely presented plaintiff's defense in response to defendant's counterclaim. Coombs v. Block, 130 Mo. 680; Simpson v. Bantley, 142 Mo.App. 495; Milling Co. v. Allen, 74 Kan. 679; Bliss on Code Pleading (3 Ed.), sec. 396; 1 Chitty on Pleading (16 Ed.), p. 678; Chemical Co. v. Lackawana Line, 70 Mo.App. 274; Philibert v. Burch, 4 Mo.App. 470; Loucks v. Davies, 43 Colo. 490; Erickson v. McLellan, 46 Wash. 661; Water Co. v. Pierce City, 61 Mo.App. 471; Heating Co. v. Bissell, 41 Mo.App. 426; Ehrlich v. Aetna Co., 103 Mo. 231; Rhodes v. Land & L. Co., 105 Mo.App. 313; McLachlin v. Barber, 64 Mo.App. 511; Ricketts v. Hart, 73 Mo.App. 647; Booker v. Allen, 158 Mo. 613; Manf'g Co. v. Heinz, 120 Mo.App. 465; Bridge Co. v. Stewart, 134 Mo.App. 618; Anderson v. Imhoff, 34 Neb. 335; Baptist Church v. Sigwald, 39 Kan. 387; St. Paul Co. v. Furn. Co., 23 Okla. 79; Wey v. Bank, 29 Okla. 943; Cement Co. v. Ullman, 140 S.W. 620; Manzki v. Goldenburg, 149 Mo.App. 14; Loftis v. Pacific Co., 114 P. 134; Low v. Keens, 133 N.W. 1127; Eddleman v. Lentz, 72 S.E. (N.C.) 1011. (4) This action was properly founded on the contract rather than upon quantum meruit. Crocker-Wheeler v. Varick Co., 104 N.Y. App. 568; McIntire v. Barnes, 4 Colo. 285; Grannis v. Deeves, 72 Hun, 171; Reading Hdw. Co. v. Pierce, 113 N.Y.S. 331; Bridge Co. v. St. Louis, 43 F. 768; Pratt v. Forge Co., 184 F. 289. (5) Time was not made of the essence of the contract, and by consent of both parties and by the conduct of defendant's inter alia in requiring the subletting of a part of the work, the time of performance became merely an obligation to complete within a reasonable time. Manufacturing Co. v. Heinz, 120 Mo.App. 465; Heating Co. v. Bissell, 41 Mo.App. 426; Turner v. Mellier, 59 Mo. 526; Sawyer v. Christian, 40 Mo.App. 295; Springfield Co. v. Walt, 94 Mo.App. 76; O'Neill v. Webb, 78 Mo.App. 1; Bagwell v. Am. Surety Co., 102 Mo.App. 707; Crocker-Wheeler v. Varick Co., 104 N.Y. App. 568; Dunn v. Steubling, 120 N.Y. 232; Fowlds v. Evans, 52 Minn. 560; Daly v. Carthage, 143 Mo.App. 564; Carroll v. Hassell, 143 S.W. 835; Wall v. Storage Co., 112 Mo.App. 659. (6) The bill of exceptions contained in the record should be stricken out and disregarded by this court, because not filed within the time required by law. Hewitt v. Colo. Springs Co., 5 Colo. 184; Mellinger v. Houston, 68 Tex. 36.

BROWN, C. Blair, C., concurs.

OPINION

BROWN, C.

The petition, so far as is necessary to understand the questions presented in this appeal, is as follows:

"That on or about May 11, 1907, the defendant, Bernard Corrigan, acting for himself personally and also as the agent and representative of The Corrigan Realty Company, made and entered into a contract with the plaintiff, whereby said Bernard Corrigan, for himself personally and as the agent of said The Corrigan Realty Company employed and engaged the plaintiff, Ottumwa Bridge Company, to furnish and erect for the said Bernard Corrigan and the said Corrigan Realty Company certain steel, iron and other building material, and to perform certain labor in and about the erection and construction of an addition to the Baltimore Hotel, a building situated on Baltimore avenue between Eleventh and Twelfth streets in Kansas City, Missouri, which said contract was in writing, a full and true copy of which is as follows, to-wit:"

Then follows a specification of cast iron bases and steel construction work entering into an addition to the Hotel Baltimore, Kansas City, Mo., the addition being a hotel structure 75x117 feet, of eleven stories and basement, together with an extension of the eleventh and twelfth stories over the existing building, approximately 42x116 feet. It provides among other things:

"Should the drawings and specifications appear to be mutually contradictory in any part, or should there be apparent errors in either, or in the figures on the drawings, the contractor must not attempt to adjust the same himself, but must refer the matter to the architect for his adjustment. All figures shown on drawings shall be checked by contractor before executing work, to the end that all work shall be reconciled within itself and to adjoining work and trades.

"Should there be any portion or detail of the work not fully shown on the drawings or shown insufficiently clear for the proper execution of the work in a thoroughly first class manner, the contractor must call for detail drawings of the same or specific instructions, and such work executed without details or specific instructions and not fully satisfactory to the architect, will be taken down and replaced at the contractor's expense."

The time for completion of the work is stated as follows:

"The owner agrees to have the excavation done and concrete beds prepared for the reception of cast iron plates on or before July 15, 1907, at which time the cast iron bases will be delivered on the ground and shall...