School Dist. of Independence v. Wilcox

• Decision Date: 06 March 1933
• Docket Number: No. 17675.,17675.
• Citation: 58 S.W.2d 1009
• Parties: SCHOOL DIST. OF INDEPENDENCE ex rel. WHALEN et al. v. WILCOX et al.
• Court: Missouri Court of Appeals

58 S.W.2d 1009

SCHOOL DIST. OF INDEPENDENCE ex rel. WHALEN et al. v. WILCOX et al.

No. 17675.

Kansas City Court of Appeals. Missouri.

March 6, 1933.

Appeal from Circuit Court, Jackson County; C. Jasper Bell, Judge.

"Not to be published in State Reports."

Action by the School District of Independence, at the relation of Charles Whalen and another, doing business as Whalen Bros., against E. A. Wilcox, doing business as the Wilcox Hardware & Plumbing Company, and another. From a judgment of dismissal, plaintiffs appeal.

Affirmed.

Carl H. Willbrand, of Kansas City, for appellants.

Burrus & Burrus, of Independence, and Louis N. Wolf, of Kansas City, for respondents.

TRIMBLE, Judge.

This action, brought by the Independence school district No. 30, at the relation of Whalen Brothers, against the Wilcox Hardware & Plumbing Company and the Ætna Casualty & Surety Company of Hartford, Conn., is to recover a balance of $425 alleged to be due on plaintiff's contract to do the sheet metal work in the construction of the "Annex" to the William Chrisman high school building in Independence, Mo. A jury was waived, and the case tried by the court. Judgment for defendants was rendered dismissing plaintiffs' petition. They have duly appealed.

The first point to be settled is the action to be taken on defendant's motion to dismiss the appeal for the reason that appellant's statement is insufficient and fails to conform to the rules. The motion will have to be overruled. We have had occasion to say several times that, unless the statement is so defective or lacking as to impede or unnecessarily increase the burden, time and work of the court in arriving at a clear understanding of the case, or in reaching a correct conclusion as to the disposition to be made thereof, we will not dismiss the appeal even though the statement may not be as artistic as it might have been or contains some things that might have been left out. The motion to dismiss must be, and is, overruled. Neff v. Sovereign Camp, W. O. W., 226 Mo. App. 899, 48 S.W.(2d) 564; Hartweg v. Kansas City Rys. Co. (Mo. App.) 231 S. W. 269; Hyde v. Henman (Mo. App.) 256 S. W. 1088, 1090; State ex rel. Nafziger Baking Co. v. Trimble (Mo. Sup.) 247 S. W. 146, 147; Nowlin v. Kansas City Pub. Serv. Co. (Mo. App.) 58 S.W.(2d) 324, handed down at the same sitting at which this is.

A Mr. Randall was the general contractor for the erection of said building; defendant Wilcox Hardware & Plumbing Company was the subcontractor for the heating and plumbing, and it sublet a portion of the sheet metal work to plaintiff at the contract price of $3,350. It is for a balance of $425 alleged to be due on this contract that this suit is brought.

The answer admitted the contracts alleged, but set up that plaintiffs failed to fully comply with their contract, in that they did not construct the metal air ducts in accordance with the plans and specifications and plaintiffs' offer; that on account of such failure defendant hardware company was compelled to and did cause said ducts to be constructed at a reasonable cost of $425, which amount was deducted from plaintiffs' sum; that, on account of plaintiffs' refusal to construct such air ducts, the dispute was submitted to the architect for settlement as provided in said building contract, but plaintiffs refused to abide by the architect's ruling. The reply was a general denial.

As heretofore stated the case was tried by the court without a jury. No declaration of law or findings of fact were asked or given, and the court's finding for the defendants was general. Under this situation we are not at liberty to disturb the judgment unless it appears, as a matter of law, from the uncontroverted evidence and the conceded facts, that it is for the wrong party.

But an examination of the contracts, and the entire record, discloses ample evidence for the establishment of every element necessary to support the court's judgment; that the undisputed evidence shows what the contract was; that it called for the erection or construction of the air ducts;...