Property Owners' Materials Co. v. Byrne

• Court: Missouri Court of Appeals
• Writing for the Court: Anderson
• Citation: Property Owners' Materials Co. v. Byrne, 176 S.W.2d 650 (Mo. App. 1944)
• Decision Date: 04 January 1944
• Docket Number: No. 26289.,26289.
• Parties: PROPERTY OWNERS' MATERIALS CO. v. BYRNE et al.

176 S.W.2d 650

PROPERTY OWNERS' MATERIALS CO. v. BYRNE et al.

No. 26289.

St. Louis Court of Appeals. Missouri.

January 4, 1944.

Appeal from St. Louis Circuit Court; William L. Mason, Judge.

"Not to be reported in State Reports."

Action by Property Owners' Materials Company against Harry J. Byrne and Loretta Byrne to recover upon a written contract for furnishing defendants with material necessary for a concrete curb and upon a contract whereby the plaintiff agreed to furnish defendants such materials as might be necessary for the distributing by the City of St. Louis and W.P.A. of asphaltic penetration on Woodland Avenue in front of defendants' property, wherein the defendants filed a counterclaim for damages on account of faulty material and unworkmanlike construction. From a judgment for defendants on the second count, the plaintiff appeals.

Judgment reversed and cause remanded with directions to enter judgment on second count in the sum of $130.71 with interest from July 15, 1941, the date of filing suit.

Joseph Boxerman, of St. Louis, for appellant.

Edw. E. Hieby, of St. Louis, for respondents.

ANDERSON, Judge.

This suit originated in a justice of the peace court. The petition was in two counts. In the first count, plaintiff sought to recover upon a written contract for furnishing defendants with materials necessary for a concrete curb, to be installed by the City of St. Louis and the W.P.A. on Woodland avenue and bordering on defendants' property. In the second count, plaintiff sought to recover $130.71 and interest upon a contract made with defendants, whereby plaintiff agreed to furnish such materials as might be "necessary for the distributing by the City of St. Louis and W.P.A. of asphaltic penetration on Woodland Avenue" in front of defendants' property, for which materials defendants agreed to make payment immediately upon completion of said street.

The defendants filed an answer and counterclaim, which contained a general denial and the following allegations : "Defendants say that the materials and labor and construction furnished and executed by plaintiff was faulty, improper and not in accordance with the agreement as set out in plaintiffs' petition. * * * and as a result thereof the defendants were put to great expense in the following manner as hereinafter described. * * * Defendants further state that as a result of the faulty material and unworkmanlike manner of plaintiff, defendants were forced to spend the amount of $749.10."

Then followed a prayer for judgment for $749.10 and costs.

The justice of the peace entered a finding and judgment for plaintiff on both counts of the petition, and against the defendants on their counterclaim. Thereupon defendants appealed to the circuit court. During the trial in that court, defendants dismissed their counterclaim, and the case was tried upon the plaintiff's petition and the defendants' answer, resulting in a verdict and judgment for defendants on the second count of the petition. Thereupon plaintiff appealed to this court from the judgment against it on said second count.

The evidence shows that the City of St. Louis and the W.P.A. paved the street in question; and defendant Harry J. Byrne, while on the stand, admitted the execution of the contract in suit. The contract was as follows :

"I/we, in consideration of the Property Owners' Materials Company furnishing such materials as may be necessary for the distributing by the City of St. Louis and W.P.A. of asphaltic penetration on Woodland, do hereby agree to pay to Property Owners' Materials Company $1.02 per foot each of 125 feet of my/our property bordering on said street.

"Payment to be made immediately upon completion of the street unless otherwise agreed upon in writing.

  "Signed this 29th day of June, 1939
                        Name—(Signed) Harry J. Byrne
                        Name—(Signed) Loretta Byrne
                          Address—4826 Woodstock
                Total Amount $130.71
                2254 S. Vandeventer
                Prospect 0636"
                

The evidence of both plaintiff and defendants shows that thereafter the asphaltic penetration was applied to the street in question, and that in August, 1940, the work was finished and the street put to...