Padgett v. Brezner

• Decision Date: 11 August 1962
• Docket Number: No. 8035,8035
• Citation: 359 S.W.2d 416
• Parties: Ernest PADGETT, Plaintiff-Respondent, v. Barnett BREZNER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 416

359 S.W.2d 416

Ernest PADGETT, Plaintiff-Respondent, v. Barnett BREZNER, Defendant-Appellant.

No. 8035.

Springfield Court of Appeals, Missouri.

Aug. 11, 1962.

Donnelly & Donnelly, David Donnelly, Robert T. Donnelly, and Wendell L. Evans, Jr., Lebanon, for defendant-appellant.

Orville C. Winchell, Lebanon, for plaintiff-respondent.

RUARK, Presiding Judge.

This is an appeal from a judgment for plaintiff on a suit wherein the plaintiff claimed a 'bonus' under a construction employment contract. A rather lengthy statement of the facts is necessary to a full understanding of the issues involved.

The petition alleged that plaintiff is a resident of Lebanon, Missouri, and defendant is a nonresident. Plaintiff and defendant entered into a contract whereby plaintiff was to perform 'certain services' for the defendant, who was a general contractor, at Fort Leonard Wood, Missouri. After the parties entered into contract, plaintiff was given authority to go over certain items of cost in a construction job and plaintiff was to receive a 10% bonus on any items which were reduced in cost through efficiency and handling efforts on his part. There was 'one item' for road construction at a cost of $152,000 which was reduced to $105,000 at the special instance and efforts of the plaintiff, thereby effecting a savings to defendant in the sum of $47,000. 'That defendant was to receive 10% of this amount, thus a net savings of $42,300.00 was saved of said bid and thereafter plaintiff was to receive 10% of this net amount' of $42,230. The sum of $1,600 was paid on the 9th day of November, 1960, and demand was made on defendant for the balance of $2,630, but he refused to pay. Plaintiff received a letter from defendant discharging him from all further services and his employment was terminated.

This petition was filed November 28, 1960. Accompanying it was an affidavit for attachment.

The amended answer is in effect a general denial. Concurrently defendant filed his counterclaim wherein he alleged that in October 1959 he employed plaintiff as his project manager on a contract for construction of off-site facilities pertaining to a housing project at Fort Wood and that he discharged plaintiff on November 9, 1960. Plaintiff's duties as project manager were to have control of the project, to keep accurate account of the business and affairs of the defendant, and otherwise to protect his interest on such job. During that employment plaintiff converted to his own use sums of money of the defendant and fraudulently caused the books and accounts to be kept in a fraudulent manner for the purpose of concealing his acts. The prayer was for $2,428.95. Plaintiff's reply denies all facts except his employment as project manager and his discharge on November 9, 1960. Trial was held in Laclede County on May 26, 1961.

Defendant Brezner is a general contractor with offices at Alexandria, Louisiana. He had bid in and been awarded a contract for work on an off-site construction project to be completed at Fort Leonard Wood in Missouri. In July 1959 plaintiff met the defendant in Alexandria, and the result of this meeting was that defendant employed plaintiff as project manager on the Fort Wood project. His salary was to be $150 per week, plus $50 per week living expense, plus $50 per month allowance for use of personal car, plus fuel for his car when used for business purposes. Plaintiff says he told Brezner he was not interested in a straight salary deal and asked Brezner if there would be a chance of making a commission on the job and 'his answer to this question was that he had bid the job very low and that he subcontracted [some parts?] of the work * * * but there were other items that he had not subcontracted which included the roads, streets, sidewalks, clearing, and grubbing, and that had not been subcontracted and that if I came to Fort Wood for him and could save some money on these he would give me a cost breakdown of how he had bid the job and if I could save some money on this job that he would pay a commission for me to accept.' He said that on August 3 he drove up and told Brezner he was going to take the job.

'Q. Now, from your understanding when is a commission like that payable--when were you to receive that money?

'A. Oh, the agreement was that I would receive the money when the job was completed.'

Brezner gave him the plans and specifications on the job and said, 'Take these home and study them and look them over,' and told him (plaintiff) he would get a work order to report to Fort Wood in a few days. He went on the payroll September 17, 1959, and on September 22 went to work at Fort Wood as project manager. That was the agreement which is the basis of the plaintiff's case.

The defendant denies there was any agreement for bonus or commission. He says it was never discussed and that he never heard of it until the lawsuit was filed. The verdict, however, having been for plaintiff on his claim, we must assume that the conversation above-mentioned took place.

After plaintiff got on the job as project manager an office was set up near the site and the records of the construction project were there. An account was opened in the Waynesville Bank, and plaintiff as project manager had authority to and did check on such account for payroll and project expense, including his own salary and allowances.

Then plaintiff began looking for a subcontractor. One Mace heard about it and got in contact with plaintiff. Plaintiff took Mace over the project. Mace looked at the specifications, and the upshot of this was that Mace made a bid of $109,000 on a subcontract for performing three items, viz., grubbing, or site clearance, grading, and surfacing of certain roads. Plaintiff did not make the deal with Mace. He called Brezner, and Brezner came up to Fort Wood. Plaintiff introduced Mace to Brezner, and Brezner and Mace had a conversation wherein Mace agreed to reduce his bid for performing the three items to $105,000, and the subcontract was let to him for those particular items. It is the 'savings' on the subcontract for these three items for which plaintiff claims a bonus or commission, because, as we understand his testimony, he had brought Mace and Brezner together.

Roscoe Mace, called as a witness for plaintiff, verified the fact that he was a contractor. In 1959 he was doing construction work at the camp for another contractor. He had a discussion with plaintiff, went over the plans, looked at the job site, and prepared bids for two parts of the construction work (one was not accepted). He went to the Engineering Corps and got some estimations of quantity and then in his own office prepared his bid of $109,000. There was no specific price discussed with plaintiff. No one had any influence on him in fixing the amount of his bid. He based it on blueprints, exhibits, and quantities. There were other bidders for the project and bidding was on a competitive basis. No one told him what to bid. After he met Brezner he reduced his bid to $105,000 and entered into a contract with Brezner. He identified his final bid and contract thereon but stated, 'This was the final contract agreement, but this here amount is not the right amount of the contract at present because there was some deletion.' The figure of $105,000 was the agreed figure at the start. The Army engineers made some changes and deleted a portion of the improvement and this changed the dollar volume, which was taken off his contract and off Brezner's.

Somewhere the job got behind schedule, and it was still behind schedule at the time plaintiff was discharged. Plaintiff agrees to that. He said, 'Well, we had a snow here that stayed on the ground for some thirty days that we didn't turn a wheel on the project, and the government allowed us an addition of time for that, and there were other things that just caused the project to lag, some of the construction.'

At the trial plaintiff's witness Mace was asked, '* * * you have initiated the job and you contemplate finishing the job, is that correct?' And he answered, 'That's right.' Defendant Brezner stated that plaintiff commenced the project and that it was never up to schedule. His contract with the government carried a delay penalty of $200 per day. The job was far behind, was not yet, at trial time, completed, and the $200 per day penalty was running. Some of the delay was due to bad weather and some of it wasn't. In October 1960 the project was 40 or 50 or 60 days behind. For awhile, when one Stewart worked in the Fort Wood office, he, Brezner, would get a list of checks which plaintiff had written. The list of these was kept and forwarded by Stewart. Padgett fired Stewart in March, and after that Brezner got no more lists.

In late October Brezner sent his agent, John Skodack, to Fort Wood to look over things. Skodack spent some twelve or thirteen days making a survey of the situation, but Padgett continued in charge of the project. Finally on November 7, 1960, Brezner wrote Padgett a letter as follows:

'Since the job is about wound up, I have decided to leave John Skodack at the camp until the final acceptance. Your own work will finish up at the end of this week. Please arrange to turn all office records over to John at that time.

'As of the moment we do not have another job to put you on, as you are undoubtedly aware. When you stop at the office on your way home we will discuss matters further.'

Plaintiff left on November 9 and departed for Lebanon, Missouri, and thereafter Skodack took over as project manager.

When plaintiff left employment he took with him certain records of the company. Included in these were a ledger sheet which plaintiff said was a list of deposits and checks written, also a list of 'all the checks that I cashed.' Skodack testified that when he took over there was no checkbook. Padgett had these in his possession. Skodack drove to Lebanon and Padgett gave him the check stub book and...