School Dist. of Springfield R-12, ex rel. Midland Paving Co. v. Transamerica Ins. Co., R-12

CourtCourt of Appeal of Missouri (US)
Writing for the CourtHOGAN; BILLINGS; PREWITT, P. J., and MAUS; PER CURIAM; All of the Judges concur, except MAUS, C. J., and PREWITT
Parties4 Ed. Law Rep. 907, 34 UCC Rep.Serv. 433 SCHOOL DISTRICT OF SPRINGFIELD, ex rel. and for the Use of MIDLAND PAVING COMPANY, Plaintiff-Appellant, v. TRANSAMERICA INSURANCE COMPANY, Defendant and Third-Party Plaintiff-Appellant, v. De, DNS Leasing Company, W. E. DeWitt, Jr., and Daphna E. DeWitt, J. F. Stiefvater and Janet Stiefvater, John L. Newton and Catherine B. Newton, Joseph W. Newton and Mary T. Newton, Third-Party Defendants and Fourth-Party Plaintiffs-Appellants, v. Everett JACKSON, Fourth-Party Defendant-Respondent.
Docket NumberNos. 11566,WITT-NEWTO,11571 and 11572,INC,R-12
Decision Date19 April 1982

Page 238

633 S.W.2d 238
4 Ed. Law Rep. 907, 34 UCC Rep.Serv. 433
SCHOOL DISTRICT OF SPRINGFIELD R-12, ex rel. and for the Use
of MIDLAND PAVING COMPANY, Plaintiff-Appellant,
v.
TRANSAMERICA INSURANCE COMPANY, Defendant and Third-Party
Plaintiff-Appellant,
v.
DeWITT-NEWTON, INC., DNS Leasing Company, W. E. DeWitt, Jr.,
and Daphna E. DeWitt, J. F. Stiefvater and Janet Stiefvater,
John L. Newton and Catherine B. Newton, Joseph W. Newton and
Mary T. Newton, Third-Party Defendants and Fourth-Party
Plaintiffs-Appellants,
v.
Everett JACKSON, Fourth-Party Defendant-Respondent.
Nos. 11566, 11571 and 11572.
Missouri Court of Appeals, Southern District, Division Two.
April 19, 1982.
Motion for Rehearing or Transfer Denied May 10, 1982.
Application to Transfer Denied June 14, 1982.

Page 240

Thomas Strong, John Wooddell, Strong & Placzek, Springfield, for plaintiff-appellant.

David W. Hall, Jr., Bussell, Hough & O'Neal, Springfield, for defendant and third-party plaintiff-appellant.

Flavius B. Freeman, Neale, Newman, Bradshaw & Freeman, Larry K. Bratvold, Shepard & Bratvold, Springfield, for third-party defendants and fourth-party plaintiffs-appellants.

HOGAN, Judge.

This is a materialman's action brought upon a public contractor's bond. Because the performance and payment bond was executed by DeWitt-Newton (the prime contractor) pursuant to the requirement of § 107.170, RSMo 1978, 1 this litigation was instituted by the obligee as provided by § 522.020, but Midland Paving Company is the real party in interest and we shall refer to Midland as the plaintiff.

Plaintiff sued the surety, defendant Transamerica. Under the provisions of Rule 52.11(a), the surety impleaded the prime contractor and a group of indemnitors; these parties defendant in turn impleaded Everett Jackson, the subcontractor to whom the materials were furnished. Sundry conflicting claims, crossclaims and counterclaims were interposed by the parties and by December 18, 1978, the cause stood at issue. After a 4-day bench trial, the court found, in essence: 1) that the plaintiff should have and recover judgment against the surety in the amount of $5,879.23, with interest at the rate of 6 percent per annum; that the surety should stand indemnified and should recover over

Page 241

against defendants DeWitt-Newton and the individual third-parties defendant in the amount of the judgment rendered against the surety, together with the sum of $12,000.00 stipulated as fair and reasonable attorney's fees incurred by the surety, 2 and 2) that DeWitt-Newton and the other third-parties defendant recover over against Jackson, the subcontractor.

All the parties except Jackson, who defaulted, have appealed. The appeals were consolidated for purposes of argument, but will be considered separately to the extent that the contentions presented differ. We must note, in candor, that the case was presented-perhaps of necessity-in confounding detail. At plaintiff's request, the trial court made extensive findings of fact and conclusions of law. We readily acknowledge the utility and clarity of those findings although we shall not set them forth in detail. We confine ourselves to a recitation of those facts and a consideration of those issues essential and necessary to a proper resolution of the appeals. See Bloomfield Reorganized School Dist. No. R-14 v. Stites, 336 S.W.2d 95, 97 (Mo.1960); Southwest Engineer. Co. v. Reorganized Sch. Dist. R-9, Lawrence County, 434 S.W.2d 743, 746 (Mo.App.1968).

The appeals are focused upon the performance of and payment for a single subcontract awarded by the prime contractor during the construction of a high school building. At some time prior to May 27, 1970, the Springfield School District R-12 determined that a fifth high school was necessary. The prime contract was let to DeWitt-Newton for $1,828,400.00 and the bond required by § 107.170 was executed. The high school building was built on or near the old Kickapoo prairie south of Springfield, was later named Kickapoo High School and during the trial, the witnesses referred to the building as "Kickapoo."

On September 29, 1970, DeWitt-Newton let a subcontract for asphalt paving to defendant Jackson, who did business in his own name and as D. O. Allen Asphalt Paving. The subcontract calls for asphalt paving and installing the materials for a "Red Dog" track; as explained upon trial, it included paving the parking lots, driveway and tennis courts and the installation of the track at Kickapoo. The contract price for the paving was $47,300.00; the "red dog" installation cost was $1,900.00. It is readily inferable that the work Jackson had to do was substantially complete by the end of October 1971, although he was required to repair and resurface the tennis courts during the summer of 1972.

On October 25, 1971, Jackson submitted an invoice requesting a progress payment in the amount of $44,935.00. DeWitt-Newton remitted the sum of $40,441.50, the amount due less 10 percent retainage. On November 18, 1971, Jackson paid plaintiff the sum of $20,000.00 which was credited to Jackson's open account. Jackson submitted another request for a progress payment on November 26, 1971, which was refused because the tennis court surfaces were not satisfactory to the prime contractor. Jackson was given an extension of time and the tennis courts were resurfaced. In September 1972, Jackson requested his retent payment. By check dated September 8, 1976, DeWitt-Newton remitted Jackson's retainage in the amount of $7,048.50, plus $30.00 in payment of a charge simply noted on the check as "# 1305." On September 11, Jackson paid plaintiff $10,000.00 by check. The check bears the legend: "FOR On Account." This check was also credited to Jackson's open account. The trial court held that the payment of $20,000.00 should have been credited to that part of Jackson's account incurred in the performance of the Kickapoo subcontract, but the retainage payment was properly credited to Jackson's

Page 242

open account. Several ancillary questions have been briefed but the trial court's allocation of these two payments is the principal matter in dispute.

Appeal number 11566 is the plaintiff's appeal. Although the defendants have not specifically briefed the point, a plaintiff's appeal ordinarily puts the submissibility of the case in issue. Usually our courts have applied this principle to cases tried to a jury, holding that trial errors are immaterial if the plaintiff made no submissible case. Osborn v. McBride, 400 S.W.2d 185, 188(1) (Mo.1966); O'Dell v. Dean, 356 Mo. 861, 863, 204 S.W.2d 248, 249(1) (1947). A similar rule applies in court-tried cases; if a plaintiff has failed to prove his right to recover any sum, he cannot have been prejudiced by the trial court's rulings limiting the amount of recovery. Laclede Land & Improvement Co. v. Schneider, 177 S.W. 388, 390(6) (Mo.1915); State ex rel. Brown v. Hamilton, 202 Mo. 377, 386, 100 S.W. 609, 611 (1907). So, we consider first the contention of both defendants that the trial court erred in applying Jackson's payments so as to avoid payment for the materials on the Kickapoo project because it was impossible to separate Jackson's purchases into separate job accounts and there was no basis for making an application of payments other than to apply the payments first to the oldest purchases. As developed, particularly in defendant DeWitt-Newton's brief, this point amounts to an argument that the items shown on Jackson's account with plaintiff were so commingled that it could not be determined what materials went into the Kickapoo project or the manner in which Jackson's payments should be credited. Defendants Transamerica and DeWitt-Newton have cited Herrman v. Daffin, 302 S.W.2d 313 (Mo.App.1957), which the trial court cited in its memorandum opinion.

The point is not without merit. Defendants' argument that there is no identifiable debt allocable to the Kickapoo paving project because plaintiff's invoices for materials do not identify the project in which they were used or consumed is not as impressive as it may appear to be at first glance. It cannot be said that the items of Jackson's account were capable of easy separation, which is the language of some of the precedents, e.g., C. A. Burton Machinery Co. v. National Surety Co., 182 S.W. 801, 804 (Mo.App.1916); the invoices do not show precisely what materials went into the Kickapoo project, as was the case in Fidelity & Deposit Co. v. John Gill & Sons Co., 270 S.W. 700, 703(2) (Mo.1925). Even so, plaintiff's action was based on its dealings with a single contractor and its failure to allocate the items of its account to discrete projects was not fatal to its recovery. Campbell Glass & Paint Co. v. Davis-Page Planing Mill Co., 130 Mo.App. 474, 478, 110 S.W. 24, 25 (1908). We are more concerned with the requirement that the plaintiff prove the materials it furnished were actually incorporated or consumed in the Kickapoo project. Public Water Sup. Dist. No. 8 of Jefferson County v. Maryland Casualty Co., 478 S.W.2d 293, 299(5) (Mo.1972); Wiss v. Royal Indemnity Co., 219 Mo.App. 568, 575, 282 S.W. 164, 165(3) (1926).

The standard by which the trial court's finding must be measured is whether the reviewing court's reading of the whole record generates a firm belief that the judgment is wrong. Rule 73.01(c), Missouri Rules of Court (13th ed. 1982); Murphy v. Carron, 536 S.W.2d 30, 32(1-3) (Mo.banc 1976). And, in this bench-tried case, the plaintiff is entitled to the benefit of all the evidence, even though defendants' motion to dismiss at the close of plaintiff's case pursuant to Rule 67.02 was not the equivalent of a motion for directed verdict. See Duval v. Midwest Auto City, Inc., 578 F.2d 721, 724(1-3) (8th Cir. 1978); Wealden Corporation v. Schwey, 482 F.2d 550, 551-552(4) (5th Cir. 1973); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2371, p. 221 (1971).

Plaintiff was at laborious pains...

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  • Rocheux Int'l of N.J. Inc. v. U.S. Merchants Financial Group Inc., Civil No. 06–6147.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • September 29, 2010
    ...and cases to challenge the inclusion of these terms under UCC § 2–207. See, e.g., Springfield School Dist. R–12 v. Transamerica Ins. Co., 633 S.W.2d 238, 247 (Mo.Ct.App.1982) (declining to incorporate additional term for 18% annual interest rate under § 2–207); Herzog, 570 A.2d at 551–52 (d......
  • Rigby Corp. v. Boatmen's Bank and Trust Co., No. WD
    • United States
    • Missouri Court of Appeals
    • June 24, 1986
    ...abandoned on appeal. Pruellage v. DeSeaton Corporation, 380 S.W.2d 403, 405[3, 4] (Mo.1964); School Dist., etc. v. Transamerica Ins. Co., 633 S.W.2d 238, 253 (Mo.App.1982), and cases cited. It would be a disservice to and unfair to respondent to take up sua sponte, the matters asserted in t......
  • Byrd v. Brown, No. 12378
    • United States
    • Missouri Court of Appeals
    • October 6, 1982
    ...254, 257 (Mo.1963), Annot. 97 A.L.R.2d 1180 (1963); School Dist. of Springfield R-12 ex rel. Midland Paving Co. v. Transamerica Ins. Co., 633 S.W.2d 238, 249 The activity with which we are immediately concerned occurred in the rear (south) part of the basement under the fabric shop. Examina......
  • Sokol v. Labor and Indus. Relations Com'n, No. WD52145
    • United States
    • Court of Appeal of Missouri (US)
    • June 3, 1997
    ...to search for error nor to raise matters not presented or argued by an appellant School Dist. of Springfield v. Transamerica Ins. Co., 633 S.W.2d 238, 253 (Mo.App.1982); Morovitz v. Morovitz, 693 S.W.2d 189, 191 (Mo.App.1985); Brown v. Michigan Millers Mut. Ins., Co., 665 S.W.2d 630, 632 (M......
  • Request a trial to view additional results
21 cases
  • Rocheux Int'l of N.J. Inc. v. U.S. Merchants Financial Group Inc., Civil No. 06–6147.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • September 29, 2010
    ...and cases to challenge the inclusion of these terms under UCC § 2–207. See, e.g., Springfield School Dist. R–12 v. Transamerica Ins. Co., 633 S.W.2d 238, 247 (Mo.Ct.App.1982) (declining to incorporate additional term for 18% annual interest rate under § 2–207); Herzog, 570 A.2d at 551–52 (d......
  • Rigby Corp. v. Boatmen's Bank and Trust Co., No. WD
    • United States
    • Missouri Court of Appeals
    • June 24, 1986
    ...abandoned on appeal. Pruellage v. DeSeaton Corporation, 380 S.W.2d 403, 405[3, 4] (Mo.1964); School Dist., etc. v. Transamerica Ins. Co., 633 S.W.2d 238, 253 (Mo.App.1982), and cases cited. It would be a disservice to and unfair to respondent to take up sua sponte, the matters asserted in t......
  • Byrd v. Brown, No. 12378
    • United States
    • Missouri Court of Appeals
    • October 6, 1982
    ...254, 257 (Mo.1963), Annot. 97 A.L.R.2d 1180 (1963); School Dist. of Springfield R-12 ex rel. Midland Paving Co. v. Transamerica Ins. Co., 633 S.W.2d 238, 249 The activity with which we are immediately concerned occurred in the rear (south) part of the basement under the fabric shop. Examina......
  • Sokol v. Labor and Indus. Relations Com'n, No. WD52145
    • United States
    • Court of Appeal of Missouri (US)
    • June 3, 1997
    ...to search for error nor to raise matters not presented or argued by an appellant School Dist. of Springfield v. Transamerica Ins. Co., 633 S.W.2d 238, 253 (Mo.App.1982); Morovitz v. Morovitz, 693 S.W.2d 189, 191 (Mo.App.1985); Brown v. Michigan Millers Mut. Ins., Co., 665 S.W.2d 630, 632 (M......
  • Request a trial to view additional results

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