Rodgers v. Levy
| Citation | 199 S.W.2d 79 |
| Decision Date | 21 January 1947 |
| Docket Number | No. 27063.,27063. |
| Parties | RODGERS v. LEVY et al. |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis Circuit Court; Joseph J. Ward, Judge.
"Not to be reported in State Reports."
Action by William Rodgers against Leah Levy, doing business as the Pic-A-Chick Poultry Company, and another, for labor and material furnished. Judgment for plaintiff, and defendants appeal.
Reversed, and cause remanded.
Dubinsky & Duggan and Edward C. Koeneman, all of St. Louis, for appellants.
Ellsworth N. Hemm, of St. Louis, for respondent.
The suit is by plaintiff, a contractor and builder, against the defendants, for labor and material furnished in the erection, alteration and repairs on a one-story stucco covered store building alleged to belong to defendant Leah Levy, and in which Julius Levy claims a partial or the entire interest therein. The contract was entered into on April 5, 1944, wherein plaintiff agreed to furnish the labor and materials for the price of $2245, but plaintiff alleges that during the course of the construction, alteration and repairs the original plans were altered and additions made thereto from time to time. The petition alleges that, before plaintiff had completed the entire construction, alterations and repairs of the building, defendants barred him from the premises and informed him that they would not permit him to finish the same, and proceeded to furnish material and hire labor on their own account to complete the same. After trial by jury a verdict was rendered in favor of plaintiff and against defendant for $623.05, and the judgment is that plaintiff have and recover of the defendant the sum of $623.05. No lien was adjudged. Whether the verdict and judgment was intended to be against both defendants, or only one of the defendants, without stating which, is not shown. No question has been raised as to the sufficiency of the verdict or judgment in that respect, but we mention the fact in passing, and are of the opinion that the judgment cannot stand for other reasons hereinafter given.
It being plaintiff's contention that defendants wrongfully prevented him from completing the contract, he had a choice of standing on his express contract or of suing on quantum meruit for the value of the labor and materials he had furnished. That such is the law is well settled. Fuhler v. Gohman & Levine Const. Co., Mo.Sup., 142 S.W.2d 482; Ott v. Moore, Mo.App., 20 S. W.2d 166; Usona Mfg. Co. v. Shubert-Christy Corporation, Mo.App., 132 S.W.2d 1101. We construe plaintiff's cause of action to be based on quantum meruit. The petition alleges that all of the items of the account were "reasonably worth the amount charged therefor at the time the same was furnished and delivered." If this were an action on an express contract the allegation of the reasonable value of the services would have no place in the petition. Hoyt v. Buder, 318 Mo. 1155, 6 S.W.2d 947, 951. Furthermore, throughout the trial plaintiff's counsel on a number of occasions disavowed any claim to recover on the contract, and stated that the suit was on quantum meruit. The case was pleaded and tried by plaintiff as an action for the reasonable value of the labor and materials furnished, and not for the consideration named in the contract. He was entitled to submit his evidence and go to the jury on that theory, to wit, that he was prevented by defendant from completing the contract and was, therefore, entitled to waive any rights of recovery he may have had on the contract and sue for the reasonable value of the labor and materials furnished, regardless of the contract price. On the other hand, the defense interposed was that plaintiff voluntarily abandoned the completion of the contract, and had been fully paid in accordance with the contract up to the time it was abandoned, and that defendant was entitled to damages against plaintiff by way of counterclaim for what it cost defendant to complete the building in accordance with the contract.
As to who breached the contract is a pivotal question in this case, because upon it depends the applicable law. Plaintiff was entitled to an instruction on his theory of the case, that defendant wrongfully prevented his completing the contract, and that the measure of damages was the reasonable value of the labor and material furnished, regardless of the contract price, but within the limits of the prayer of the petition, to wit, $623.05; and defendant was entitled to an instruction on defendant's theory of the case, that plaintiff had breached the contract, in which case plaintiff's measure of damages, if any, would be the reasonable value of the labor and material furnished, but not exceeding the contract price, and less the damages occasioned to the defendant by plaintiff's breach of the contract.
The account as set out in the petition itemizes the amount plaintiff paid for carpenters and laborers amounting to $1274.66, and the amount paid for materials at $1071.79, to which is added, "Plus 25% Overhead Expenses $586.61," aggregating $2933.06. It then lists a credit memorandum amounting to $573, and payment by checks amounting to $1300, aggregating $1873, and leaving a balance due of $1060.06, for which he prayed judgment. During the trial plaintiff asked to reduce the amount of his...
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...Hutchinson v. Swope, 256 S.W. 134; Gillen v. Haley, 185 Mo.App. 23, 171 S.W. 638; Cheek v. Natl. Life Ins. Co., 200 Mo.App. 533; Rodgers v. Levy, 199 S.W.2d 79. Osdol, C. Bradley and Dalton, CC., concur. OPINION VAN OSDOL Action to recover $ 39,800, the alleged reasonable value of services ......
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Bailey v. Interstate Airmotive, Inc.
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