Ruemmeli-Dawley Mfg. Co. v. May Department Stores Co.

• Decision Date: 03 May 1921
• Docket Number: No. 16066.,16066.
• Parties: RUEMMELI-DAWLEY MFG. CO. v. MAY DEPARTMENT STORES CO.
• Court: Missouri Court of Appeals

231 S.W. 1031

RUEMMELI-DAWLEY MFG. CO. v. MAY DEPARTMENT STORES CO.

No. 16066.

St. Louis Court of Appeals. Missouri.

May 3, 1921.

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.

"Not to be officially published."

Action by the Ruemmeli-Dawley Manufacturing Company against the May Department Stores Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Nagel & Kirby, of St. Louis, for appellant.

Nathan Frank and Richard A. Jones, both of St. Louis, for respondent.

BECKER, J.

Plaintiff was one of the contractors engaged in the preparation of the premises leased by the defendant in the Railway Exchange Building in St. Louis. The part of this work which plaintiff was to perform, namely, that of constructing and installing a refrigerating plant and the work connected therewith, was covered by a written contract between plaintiff and defendant executed prior to the doing of the work.

Under the five counts of its petition plaintiff seeks to recover upon quantum meruit for labor and material claimed to have been furnished upon and in connection with this work. The defendant's answer to each of the counts was a general denial.

The case was tried to the court without the intervention of a jury. At the trial, as "part of its case in chief, plaintiff offered, and there was received in evidence the said written contract between plaintiff and defendant, and plaintiff sought to establish that the various items upon which it based its claim were "extras," and not contemplated to be furnished as a part of the general contract. This contract as introduced in evidence, as to the method by which anything for which extra compensation was to be claimed, required as a condition precedent thereto that—

"Any modification of plans and specifications deemed advisable by the owner, before or during the construction of the work, shall be estimated upon at the time by the contractor, and, if satisfactory to the owner, he will order work done at the prices agreed upon in writing; otherwise extra work shall not be allowed, and the contractor will not be allowed extra payment for same."

During the progress of the trial the defendant was permitted, over objection of the plaintiff, to introduce testimony to the effect that no written orders had been given for any of the items mentioned in plaintiff's petition.

No declarations of law were asked for or given, and the court made no finding of facts.

The court found for defendant on each of the counts in plaintiff's petition, and plaintiff appealed.

Plaintiff below, appellant here, assigns as error the ruling of the court which permitted defendant to introduce testimony to the effect that no written orders were given for the work sued on in the several counts in plaintiff's petition, and in the overruling of plaintiff's objection to such testimony on the ground that the only basis for any such evidence was to be found in the written contract between plaintiff and defendant, and that this contract should have been specially pleaded by the defendant in its answer had it intended to rely upon its provisions.

"* * * It is very true that, where work is done or services performed under a special contract, and the plaintiff has fully performed the contract on his part, and nothing remains but a duty on the part of the defendant to pay the price agreed on, the plaintiff is not in such case bound to sue on the written contract, but may use the common counts in assumpsit, but still, when the contract is produced on the trial, the plaintiff will be required to prove that he has performed the contract on his part, and that by virtue of the provisions of the contract the defendant is required to pay the price agreed on; if any fact necessary is create a liability on the part of defendant to pay is wanting, the plaintiff cannot recover." Stout v. St. Louis Tribune Co., 52 Mo. 342, loc. cit. 347; Ingram v. Ashmore, 12 Mo. 574; Mansur v. Botts, 80 Mo. 651; Redman v. Adams, 165 Mo. 60, 65 S. W. 300; Williams v. Chicago By. Co., 112 Mo. 463, 20 S. W. 631, 34 Am. St. Rep. 403.

And it has frequently been held in such cases, however, that the contract between the parties may be "used as an instrument of proof." Neenan v. Donoghue, 50 Mo. 493. See, also, Stockman v. Allen, 160 Mo. App. 229, 142 S. W. 744; American Surety Co. v. Const. Co., 182 Mo. App. 667, toe. cit. 674, 166 S....