Pioneer Const. Co. v. Schmidt
| Decision Date | 11 February 1946 |
| Docket Number | 39526 |
| Citation | 192 S.W.2d 859 |
| Parties | Pioneer Construction Company, Respondent, v. Oscar H. Schmidt, Appellant |
| Court | Missouri Supreme Court |
From the Circuit Court of Buchanan County, Civil Appeal, Judge Sam Wilcox.
Affirmed
The Pioneer Construction Company, a corporation, obtained a judgment against Oscar H. Schmidt for $15,131.12, the principal ($8,600) and interest ($6,531.12) on appellant's note, payable on demand. The answer admitted the execution and delivery of the note but pleaded it was without consideration and not binding in respondent's hands. That contention is renewed here. Appellant reargues certain factual issues but our review of the evidence, the jury having determined the facts, is in the light most favorable to the respondent as the jurors were privileged and their verdict demonstrates they did believe that evidence. The material facts follow:
Respondent was engaged in contract work. In August, 1928, respondent entered into a contract with the Missouri State Highway Commission for the construction of certain road projects in Davies and Harrison counties, Missouri. Being primarily a builder of bridges, respondent subcontracted a portion of the grading, etc., to appellant. The work did not progress as contemplated and the State Highway Commission complained. Respondent, in turn, complained to appellant. Appellant stated he could not finish on time, and negotiations were entered into under which the contracting firm of Miller & Son agreed to finish the work appellant had subcontracted to perform. There was substantive testimony that appellant recognized his liability. He was kept advised of the progress of the negotiations and approved the agreement under which Miller & Son were to do the work. A measure of the damages for the breach of a contract of the nature under review is briefly, the reasonable cost of completion. See Cosden Oil & Gas Co. v. Moss, 131 Okla. 49, 267 P. 855, 860[3]; Dement v. McNail (Mo.App.), 281 S.W. 128, 129[1]; Noonan v. Independence Indemnity Co., 328 Mo. 706 720, 41 S.W.2d 162, 167[12]; 9 C.J. p. 809-813; 40 C.J.S. p. 107, 129; 25 C.J.S. p. 563, 568; 9 Am.Jur. p. 88, Secs. 151, 152; 5 Williston, Contracts (1937) Ed.), Sec. 1363. Miller & Son completed the work. A dispute arose between Miller & Son and respondent over the price to be paid and Miller & Son instituted suit against respondent for the amount due under their theory.
At that time, September 22, 1930, appellant wrote respondent as follows:
Hearings, consuming considerable time, were had in Miller & Son vs. respondent. The referee's report was adverse to the respondent. Negotiations for a compromise followed. Appellant was kept advised. A compromise was tentatively agreed upon. The figures involved in the compromise were gone over and agreed to by respondent and appellant; and thereupon, in June 28, 1932, appellant delivered the demand note sued on and the following letter to respondent.
"You are herby authorized to settle the case of J. H. Miller
& Son vs. the Pioneer Construction Company, and Surety on the bond pending in the Circuit Court of Jackson County, Missouri, by the payment to said Miller of ten thousand five hundred ($10,500.00) dollars, and bearing one-half of the costs totaling twenty-five hundred forty-seven and 17/100 ($2547.17) dollars to May 16th, 1932, plus an additional fee of five hundred ($500.00) dollars to your attorney and plus half of the unpaid court costs approximating twenty-five ($25.00) or thirty ($30.00) dollars.
"I further agree to furnish you collateral as soon as possible and to the best of my ability to protect you on note which I am giving you this day for my balance." The following day the compromise between Miller & Son and respondent was consummated in conformity with the quoted letter of appellant to respondent.
These facts refute appellant's contention that the note was without consideration as well as other contentions incidental thereto. Appellant had become liable to respondent by reason of his breach of the subcontract. Respondent, with appellant's approval, caused to be performed that which appellant had agreed to perform. The cost thereof was not definitely known. Finally this cost was determined and agreed to; and appellant executed the letter of June 28, 1932, and the note in suit. The letter explained the consideration for the note and the note evidenced appellant's debt. Respondent in conformity with appellant's said letter and note performed by paying Miller & Son the costs to respondent occasioned by appellant's breach of the original subcontract. This payment by respondent to Miller & Son of the approved settlement was, among other things, the compromise of the amount of a liability of appellant; a benefit to appellant and a detriment to respondent, a valuable consideration. The jury could so infer on this record.
Appellant asserts certain matters pertaining to the evidence were "highly prejudicial." No authority in support of any point is cited. We have examined the record for the incidents referred to. His complaints fall, mainly because the pleaded defenses on which the evidence had a bearing crumpled as the reception of the evidence progressed. Appellant's cou...
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