S & H Concrete Const. Co. v. Genova

• Citation: 384 S.W.2d 816
• Decision Date: 07 December 1964
• Docket Number: No. 24078,24078
• Parties: S & H CONCRETE CONSTRUCTION COMPANY, Inc., Plaintiff-Respondent, v. Jack GENOVA and Ewing Investments, Inc., Defendants-Appellants.
• Court: Court of Appeal of Missouri (US)

Page 816

384 S.W.2d 816

S & H CONCRETE CONSTRUCTION COMPANY, Inc., Plaintiff-Respondent, v. Jack GENOVA and Ewing Investments, Inc., Defendants-Appellants.

No. 24078.

Kansas City Court of Appeals, Missouri.

Dec. 7, 1964.

Irving Achtenberg, Kansas City, for appellants.

John G. Crichton and Ben W. Morse, North Kansas City, for respondent.

CROSS, Judge.

Plaintiff is a corporation engaged in the performance of various construction services. Defendant Ewing Investments, Inc. is a business corporation and the owner of the Carpenter Building, a six story brick structure, at 318 East 7th Street, in Kansas City, Missouri. Defendant Jack Genova is an officer and stockholder of defendant corporation.

Plaintiff prosecutes this action to recover for construction services rendered under an oral agreement. Trial to the court resulted in a judgment for plaintiff against both defendants in the sum of $1,998.01, with interest, and against defendant corporation on its counterclaims for damages. Defendants have appealed.

On October 27, 1961, plaintiff corporation, represented by its officer and agent, Bennie Sole, entered into an oral agreement with defendant corporation, negotiated on its behalf by defendant Genova, providing that the former would make certain repairs and improvements upon the latter's Carpenter Building. Under the agreement plaintiff was obligated to install new window sills, calk around the windows, clean the masonry, patch deteriorated concrete, point the mortar, and then apply waterproofing to the entire surface of the building. For these services it was agreed that plaintiff was to be paid the cost of its labor and material expended and $25.00 for each day of work. Plaintiff claims that the agreement also provided that it was to receive an additional sum, as payment for 'overhead expenses', equal to 8% of the total cost of material and labor. This claim is disputed by defendants' pleadings and evidence. Also in dispute is a contention by defendants that the agreement obligated plaintiff to furnish continuous personal supervision of the job by its president, Bennie Sole. It is not disputed that the oral contract was terminable at any time at the will of either party.

Plaintiff began work under the agreement and continued working for 19 working days through a period of five weeks. Sole did not give full time personal supervision. Instead a foreman was hired and placed in charge of the work. Defendant Genova was present 'on the job' every day during this time observing the work on behalf of defendant corporation. Soon after work started Genova began to complain that the men were not doing the amount of work they should and were not putting in full time. He informed Sole that they got on the job late and would regularly leave the job and go home at 2:00 or 2:30 o'clock and that they were drinking on the job. Genova also complained about the quality of the work. Pursuant to Genova's complaints, Sole replaced almost the entire working crew at least four times. Genova continued to express dissatisfaction with the amount and quality of work done. Finally, on December 15, 1961, he terminated the agreement and directed plaintiff to remove its men and equipment from the premises.

On behalf of plaintiff, Sole produced time cards and pay checks which were received as evidence of wages paid for labor on the job totalling $1,576.08. Sole testified to expenditures for materials used in the total amount of $314.92 and 'miscellaneous' job expense items amounting to $281.93. Giving credit for 'reusable tools' in the sum of $22.00, Sole claimed on behalf of plaintiff the sum of $2,150.00 as the 'net total paid out', $172.08 as 'overhead expense' at 8% and 10 days 'profit' at $25.00 per day amounting to $475.00--a grand total of $2,798.01. Giving defendant credit for $800.00 it had previously paid, Sole testified plaintiff's net entitlement was $1,998.01.

Defendant Genova testified to the effect that the men on the job did not put in working the time for which they were paid and that their work was not of workmanlike quality. It was Genova's testimony that he was 'there' every day from 8:00 to 4:30. He stated that the workmen didn't show up before 8:15 or 8:30 in the morning and then 'every time I looked up at 2:30 or 3:00 o'clock well, they was on their way home * * * I never seen any of them work after 3:00 o'clock'. He reported this to Sole.

In support of corporate defendant's counterclaim for damages there is evidence that plaintiff's workmen had dumped quantities of mortar on the roof of the building and allowed it to harden, resulting in the necessity of its removal and repair of the roof; that they had damaged the flashing with their shoes and caused leaks in the roof; that the awnings of the building were permitted to blow off the building and damaged so as to be useless; that there was damage to cars on the ground and to nearby buildings caused by cement dropped by plaintiffs' laborers; that the wall surfaces to which plaintiff applied waterproofing were discolored, showed spots and had flaked off in places; and, that it was necessary to redo some of the work--all to corporate defendant's damage in the approximate sum of $1,000.00.

The first appeal assignment charges the court with error in rendering judgment against defendant Genova because there was no evidence that he was a party to the contract. We are in agreement with the contention. There is no evidence whatsoever in the record to show, or from which legitimate inference could arise, that Genova jointly contracted with defendant corporation or that he guaranteed its obligation. Nor is our attention directed by plaintiff to any such evidence. Plaintiff argues for the first time in its brief, filed after oral argument, that defendant Genova contracted as an agent with an undisclosed principal or that he intended to impose personal liability on himself as a guarantor. There is no basis for this claim. All the evidence, including the admissions of witness Sole who negotiated the contract on behalf of plaintiff, indicates that Genova was acting only on behalf of defendant corporation. Sole testified that he had previously done work for Ewing Investments, Inc., when Genova was acting as its agent and had received the corporation's check in payment; also, that the partial payment of $800.00 in this case was paid by a check issued by Ewing Investments, Inc. Knowing these facts, Sole will not be heard to say that defendant corporation was an undisclosed principal. This theory was not pleaded by plaintiff or developed in the trial.

Consequently we rule that the judgment against defendant Genova is without evidentiary support and that the court erred in rendering it. See Hunt v. Sanders, 313 Mo. 169, 281 S.W. 422. Plaintiff suggests in its brief that if this court should decide there is no personal liability against Genova, we have authority to correct the judgment and enter it as against the defendant corporation only. We would follow that course of action if the trial had been otherwise free from error. As...