Roper v. Clanton

• Decision Date: 13 May 1953
• Docket Number: No. 7147,7147
• Citation: 258 S.W.2d 283
• Parties: ROPER v. CLANTON et al.
• Court: Missouri Court of Appeals

Page 283

258 S.W.2d 283

ROPER v. CLANTON et al.

No. 7147.

Springfield Court of Appeals, Missouri.

May 13, 1953.

Kirby W. Patterson, Springfield, for appellant.

Haymes, Dickey & Dickey, Victor O. Coltrane, Springfield, for respondents.

McDOWELL, Judge.

This is an action in contract and to establish a mechanic's lien. The petition was filed March 17, 1952, in the Circuit Court of Greene County, Mossuri, and was tried June 12, 1952, by the court, resulting in judgment for defendants. Plaintiff appealed.

Plaintiff's petition alleged that defendants were the owners of certain real estate (describing it) situated in Springfield, Missouri, improved by a frame apartment house at 649 West Tampa Street; that on or about November 7, 1951, defendants entered into an oral contract with plaintiff whereby plaintiff agreed to install new service and panels and re-circuiting apartments at said address and defendants agreed to pay for the same. Plaintiff further alleged that he performed the work and furnished certain materials, (describing it) and that the reasonable value of said labor and materials so furnished was $735.46. The petition alleged the filing of the account, together with a mechanic's lien, in the Circuit Court of Greene County, and prayed judgment for $735.46 and asked that it be declared a mechanic's lien against the real estate described in the petition.

Defendants' answer was a general denial.

At the conclusion of plaintiff's evidence the trial court sustained a motion for a directed verdict for defendant, Lucy Clanton, and, at the close of all of the evidence, the court rendered judgment for defendant, C. H. Clanton.

The evidence shows that defendants owned an apartment house at 649 West Tampa Street in Springfield; that it was an old house containing ten apartments of two rooms each. Defendant, C. H. Clanton, on November 7, 1951, telephoned plaintiff who was, at the time, engaged in the electrical contracting business and doing business as Roper Electric Company; that he was having trouble with the electrical equipment in said building.

The testimony shows that plaintiff and defendant, C. H. Clanton, went to said apartment building, in the nighttime, to determine the cause of the trouble and found that the circuit had been overloaded and a fuse had blown.

The evidence shows that on the night the alleged contract was made, there were three people present--plaintiff, defendant and defendant's brother. Plaintiff admits that, at no time, did he talk to Mrs. Clanton or have any dealings with her whatsoever.

There were two circuits constructed with No. 14 wire, one serving the upstairs and one serving the downstairs of the building. On one circuit there was a bath, stoker and nine apartments and on the other circuit, one apartment and one bath. These apartments, each, had a refrigerator attached so as to overload the circuit. Plaintiff testified about the matter in these words:

'* * * In other words, what had really happened, the circuit had become overloaded--it had did that a number of times before. A fuse had blown. * * * So what we had to do was to go to every apartment in the building, be sure that the entire load was disconnected and warn the people not to turn anything on until we got back around to them. Mr. Clanton was expressing the fear all the time that it was going to be an awful cold night and it just must be done. And I went around, and he went with me, and we did, finally, by relieving the load, and put a fuse in, and then the stoker came on, the blower came on, and then one by one we put the rest of the building back in service. And by using a fuse which was twice too large--that shouldn't have ever been used on that size wire to begin with--we did hold the load until we were able to get there and straighten it out. Now, in going over the job that night, Mr. Clanton wondered why he couldn't have those long pencil-type fuses.

'* * * He understood, of course, that--he somewhere had learned, of course, that you could buy those in larger sizes than a 30-ampere. 30-ampere is the largest size of plug fuse that is made. So I told him yes, he could have that. He made some remark about what would that cost to do that? I said, 'Well, Mr. Clanton,' I said, 'I could give you an intelligent estimate as to the cost of rebuilding your service, which would give you the pencil-type fuse, but,' I said, 'when you get into anything further than that in the re-circuiting of your building, being an old house, it would be a pretty difficult thing but it could be done.' And that was all the conversation on that.'

Plaintiff testified that while there they were called over to another building owned by defendants on Lyon and Lynn Streets; that they went over there and did some work on the lighting system; that when they got this job done on Lynn Street that night, out in the middle of the street, defendant, Clanton, took out his pocket book and offered to pay for the work. Plaintiff told defendant he would just bill him for all the work at one time and that, after that, each went his own way.

Plaintiff testified he never billed defendants, at any time, for this work because defendant had given him the job of repairing the apartment house. He also stated he gave defendants a discount of twenty-five per cent on materials furnished.

Plaintiff testified that the condition of the wiring of the apartment was old and inadequate and hazardous; that the No. 14 wire in use had only a rated capacity of 15-amperes; that No. 14 wire should never be used in excess of 15-ampere fuse and, at the time, a 30 fuse wouldn't hold it. He testified that the circuits were well overloaded and needed attention and defendant, Clanton, admitted he wanted the condition corrected.

On cross-examination plaintiff testified: 'Mr. Clanton, while standing in the snow knee-deep that night, told me to just go on over there and fix that job up. And that is what I did, * * * I didn't go over there with the express purpose of doing anything except merely seeing that the job was finished. I didn't go into all the minute details you are trying to get into. * * *'

Plaintiff gave this testimony: 'Well, Judge, as I recall, during our going over the building and disconnecting these various rooms, he himself, brought up the subject that something should be done about his wiring. And he brought up this: why couldn't he have some of those pencil-type fuses? And I said, 'Well, sir, you can and should have them.' He said, 'What will that cost?' 'Well, sir,' I says, 'to give you an estimate as to the cost of that to the meter, the service, would be a very simple thing,' 'but,' I said, 'getting on into figuring the circuiting of the building would be rather difficult, however,' I said, 'it could be done.' And that was all that was said about it until we went on over to the other building, and was ready to leave the other job, he says, 'Just go ahead and fix that job up over on Tampa.''

Plaintiff testified that the following day he had the area of the building figured as required by the code, to determine how many circuits the building required; that upon this basis, it was determined that the building needed two circuits for each apartment, one for the applicance circuit and one for the lighting circuit. In addition to that, it needed a circuit for lighting the halls and basement, plus a circuit for the stoker and blower, making a total need of 22 active circuits. He testified they installed on each of the two floors, a 12-circuit multi-breaker to take care of the 22 circuits.

We think the testimony shows that the work done by plaintiff, under this employment, complied with the code and that plaintiff actually did the work sued for and furnished the materials as alleged in the petition; that if plaintiff is entitled to recover; we think the evidence clearly establishes that the reasonable value of the services and materials furnished was the amount sued for in the petition.

The city ordinance of Springfield relating to the electrical wiring of houses was introduced. The evidence is undisputed that the City of Springfield adopted the National Electrical Code. The evidence, on the part of plaintiff, showed that when the wiring of an old building was in a condition such as the one in question, the owner of the house was required to bring the condition of the wiring up to comply with the National Electrical Code, which is also the city code. The city inspector testified that the work done by plaintiff was the very minimum required by the city code and that such work could not have been done at any substantially less expenditure of time and labor and material than what was actually done by plaintiff. He testified that he permitted the use of remex on this job because there was no remodeling going on inside the house and that the cost was just about half the price a pipe job would be.

Plaintiff's testimony further shows that while this work was being completed, defendant, C. H. Clanton, was remodeling an office in the building adjoining the one where plaintiff was working and was there almost every day during the entire three weeks that plaintiff was doing the work. He saw the workmen at lunch and out in front of the house, and, yet, he says that he never paid any attention to the work until just the day before the job was completed when he tried to call plaintiff.

The evidence on the part of plaintiff shows that some three days after the work started he called defendant on the telephone and asked him about using romex on the building and that defendant told him to go ahead. Plaintiff's workmen did testify that defendant seemed to think there was more work being done than was necessary on this job.

Defendants' evidence admits that defendant, C. H. Clanton, called plaintiff on the 7th of November, 1951. This defendant stated that during the summer he and the tenants had put in electric refrigerators in the building and when cold weather came along...