Pitzer v. Hercher
| Decision Date | 02 December 1958 |
| Docket Number | No. 29984,29984 |
| Citation | 318 S.W.2d 397 |
| Parties | Lavina M. PITZER (Plaintiff), Respondent, v. Marvin O. HERCHER (Defendant), Appellant. |
| Court | Missouri Court of Appeals |
Irvin D. Emerson, Hillsboro, for appellant.
Dearing, Richeson & Weier, H. L. C. Weier, Hillsboro, for respondent.
In this action plaintiff has brought suit for damages alleged to be the result of the negligent and unworkmanlike manner in which defendant performed a contract for the erection of a house for plaintiff. Defendant filed a counterclaim for the amount alleged to be due and owning to him under said contract. There was a verdict and judgment for plaintiff on her cause of action for the sum of $800, and against defendant and in favor of plaintiff on defendant's counterclaim. From this judgment, defendant has appealed.
The petition alleged that plaintiff and defendant entered into a contract whereby defendant agreed to erect for plaintiff in a substantial and workmanlike manner a five room frame house with bath on a 32' X 32' concrete block foundation for which plaintiff agreed to pay defendant the sum of $9,000.
It was then alleged that defendant, in compliance with said contract, commenced work on said residence; that said defendant laid the foundation of said building and partially erected the first story thereof; that upon the completion of the foundation plaintiff paid defendant the sum of $3,000, and thereafter paid him the sum of $1,000; and that said sums were in payment of all materials and the labor performed upon said premises up to the 23rd day of February, 1957.
It was then alleged that the defendant had erected said building in an unskillful and negligent manner in that the measurements of the walls were inaccurate and the frame portion of the structure not properly positioned upon the foundation, causing the same to be in a dangerous and unworkmanlike condition which would cause the walls to sag and crack, and the house to become useless and untenantable.
The prayer of the petition was for damages in the sum of $5,000, and costs.
Defendant, in his answer, admitted making the contract as alleged in plaintiff's petition. He then alleged that he entered upon the premises of plaintiff in compliance with the contract, put in the foundation and erected a building thereon; that the building was under roof and the windows set; that he did receive the sum of $4,000 in payment for materials and labor performed upon said contract. Defendant denied that said sum of $4,000 was payment in full for the said labor and materials. The answer denied that the work was done in an unskillful and negligent manner, as alleged in plaintiff's petition; and denied that plaintiff had been damaged in the sum of $5,000. The prayer of the answer was that defendant be discharged with his costs.
The counterclaim alleged the making of the contract, the entry upon the plaintiff's premises to perform same, and the value of the materials furnished and the labor expended to be $4,706.12. A legal description of plaintiff's premises was then set out. Allegation was then made of the filing with the Circuit Clerk of a true and just account of the labor and materials furnished, which was intended to be a lien upon said premises.
It was then alleged that plaintiff, on or about the 9th day of March, 1957, refused to allow defendant to perform the contract, and that his claim was for the reasonable value of the materials, together with his services and labor which actually entered into said construction, which was in the sum of $4,706.12--as set out in the statement of account filed with the Circuit Clerk. It was alleged that a demand on plaintiff for said amount due was made but that plaintiff failed and refused to pay same, and that there was due defendant the sum of $706.12. Judgment was prayed in said amount, to be declared as a prior and superior lien upon the real estate in question.
At the request of plaintiff, the court instructed the jury as follows:
'The Court instructs the jury that if you find and believe from the evidence that heretofore the defendant entered into a contract with plaintiff to construct and erect a five room frame house with bath on a 32 foot by 32 foot concrete block foundation in a substantial and workmanlike manner, and that thereafter defendant entered upon the premises of the plaintiff, erected the foundation and partially erected the frame dwelling thereon and that defendant received $4,000.00 from the plaintiff in payment of materials and labor used in the construction of said building; and if you further find that the defendant failed to erect said building in a substantial and workmanlike manner, but instead erected it so that the measurements of the walls were inaccurate and the frame portion of the structure was not properly positioned upon the foundation and that this manner in which the building was erected caused the same to be in an unworkmanlike and defective condition so that it could not be completed in that condition as a substantial and useable house according to the contract, then you will find the issues as to plaintiff's cause of action in favor of plaintiff and against defendant.'
'The Court instructs the jury that if you find for the plaintiff and against the defendant under the evidence and under the other instruction given by the Court, then you should assess plaintiff's damages, if any, in such sum which you believe from the evidence it would reasonably take to make the building conform to what it should be under the requirements of the contract at the time defendant stopped further work upon it.'
Appellant's first point is that Instructions 1 and 2 gave the jury a roving commission to find the terms and specifications of the alleged contract which were breached by the defendant.
The terms of the contract are not in dispute. By said contract, defendant agreed to erect for plaintiff a five room house with bath on a 32' X 32' concrete block foundation, for which plaintiff agreed to pay defendant the sum of $9,000. These were the terms pleaded by plaintiff in her petition, and by defendant in his counterclaim. The evidence of both parties showed the contract to be as alleged. An implied condition of said...
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Jake C. Byers, Inc. v. J.B.C. Investments
...in a workmanlike manner. Baerveldt & Honig Construction Co. v. Szombathy, 365 Mo. 845, 289 S.W.2d 116, 118 (1956); Pitzer v. Hercher, 318 S.W.2d 397, 399 (Mo.App.1958); see, e.g., Buder v. Martin, 657 S.W.2d 667, 669 (Mo.App.1983). Moreover, in an action for breach of such a contract, the p......
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Swenson v. Lowe, 659--41393--I
...reasonably should have been completed, or at the date when the contractor ceased performance on August 15, 1967. See Pitzer v. Hercher, 318 S.W.2d 397 (Mo.App.1958). Indeed, the court found that the counterclaim for $8,309.50 should be dismissed. for failure to sustain their burden of proof......
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...said building in a substantial and workmanlike manner so that the structure was defective was held to be proper. Pitzer v. Hercher, 318 S.W.2d 397, 398--399 (Mo.App.1958). The theory of the plaintiff's case and the nature of the alleged breach by Lead Belt was its failure to construct and i......
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Hotchner v. Liebowits
...was an express specification of the contract and one that would have been implied had it not been expressly stated. Pitzer v. Hercher, Mo.App., 318 S.W.2d 397. With regard to the alleged faulty work done on the windows, doors, fireplace, concrete steps and walks, there was ample evidence to......