Schott v. Bruce

• Citation: 407 S.W.2d 61
• Decision Date: 20 September 1966
• Docket Number: No. 32280,32280
• Parties: Mr. and Mrs. Robert SCHOTT, d/b/a Builders and Industrial Supply Company, a Corporation, Plaintiffs-Respondents, v. Ken BRUCE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 61

407 S.W.2d 61

Mr. and Mrs. Robert SCHOTT, d/b/a Builders and Industrial

Supply Company, a Corporation, Plaintiffs-Respondents, v. Ken BRUCE, Defendant-Appellant.

No. 32280.

St. Louis Court of Appeals, Missouri.

Sept. 20, 1966.

Thurman, Nixon, Smith & Howald, Louis Jerry Weber, Hillsboro, for defendant-appellant.

Steiner & Fenlon, Clayton, for plaintiffs-respondents.

BRADY, Commissioner.

This case comes to the writer upon reassignment. It began as a suit upon an account arising out of a transaction between these parties involving some garage doors, kitchen cabinets, and range hoods plaintiffs allege they sold and delivered to the defendant. A jury being waived, trial was had with a judgment for the plaintiffs. The defendant has perfected his timely appeal. The transaction out of which this controversy arose occurred prior to the effective date of the adoption of the Uniform Commercial Code in this State, (see RSMo 1959, 400.1--101 to 400.10--102, V.A.M.S.) and was tried without regard to the possible application of the provisions of that code.

We review non-jury cases as we do suits in equity, giving due regard to the trial court's opportunity to judge credibility of the witnesses and allowing the judgment to stand unless it is clearly erroneous, but we make independent findings of fact and reach our own conclusions upon the weight of the evidence. We are to enter or direct the entry of such judgment as justice requires. Jones v. Des Moines and Mississippi River Levee District No. 1, Mo.App., 369 S.W.2d 865.

The defendant, a builder, was constructing houses in a subdivision near High Ridge, Missouri. He purchased six garage doors, seven sets of cabinets, and some range hoods from the plaintiffs. With respect to the cabinets and range hoods, the contract consisted of a diagram of the kitchen to be constructed in the houses with notations of the dimensions of the range hoods and the dimensions and stock number references to the cabinets stated thereon. Also noted thereon were the words 'total installed' which appeared directly opposite the total price quoted. The plaintiffs' evidence was that the cabinets and range hood for the house on Lot 16 were delivered to that house and placed therein. Their evidence also was that the cabinets were not installed at defendant's request as he wanted time to allow a wall to be moved. The defendant's evidence was that these cabinets were never delivered except for one piece which was placed with the cabinets for another house, and that there was no request nor reason for delay in installation. There is no explanation in the evidence as to the house for which the other range hood was intended or as to the cause of its disappearance. There is no dispute, however, as to two range hoods being missing or as to the accuracy of the item of $56.10 representing two range hoods as stated in plaintiffs' account.

With respect to the garage doors, the order stated 'w/installations'. These doors were unvarnished and unpainted, and they were to be hung by the plaintiffs' subcontractor, after which they were to be painted and finished by the defendant. The plaintiffs' evidence was that their deliveryman unloaded the doors and placed them inside a building out of the weather. The defendant's evidence was that these doors were unloaded out in the open spread over an area of approximately forty square feet. After they were delivered, the defendant made no effort to protect in garage doors from the weather. The plaintiffs' evidence also was that the defendant requested that installation be delayed until some cement was poured and because three of the six houses involved weren't quite ready for the installation although the other three were. Defendant's evidence was that he demanded several times that plaintiffs hang the doors and was assured that they would be hung in a few days. He denied the three houses were not ready although his carpenter foreman admitted the three were not ready on the day the doors were delivered, but stated they were ready soon after that, and that the plaintiffs thereafter repeatedly refused to install these doors. Between the date of delivery and the time the doors were hung the cardboard cartons containing the doors fell apart because of the rain and snow and the doors swelled, became discolored, cracked, rough, and unusable. They had to be re-sanded and refinished before they could be painted. Plaintiffs' subcontractor billed the plaintiffs for five door installations, and the evidence of their salesman was that these five were actually installed by the subcontractor. A credit on plaintiffs' statement of account was given the defendant for the installation of one door. Defendant's evidence was that the installation subcontractor installed only four doors and that he had to install two of the doors. Plaintiffs also furnished three low headroom kits and there was a dispute in the testimony as to whether or not these kits were actually necessary to install the doors and whether they were actually used. Defendant's carpenter foreman testified the kits were not used and were never delivered. Four of the doors were paid for but two of them were not paid for as they were in such bad condition that even after defendant re-sanded and refinished them he had to give a purchaser of one of the houses on which such a door was installed a credit of $110.00. He arrived at this sum by adding the cost of the door, $75.00, to the cost of painting, $20.00, and to the cost of taking it down so that the painting could be done, $15.00. His evidence also was that it cost $37.50 to hang the garage door for which he was given no credit by plaintiffs.

The plaintiffs' petition alleged that the total amount due from the defendant was $622.99. From the evidence it appears that this amount is computed as follows: $492.51 for kitchen cabinets; $56.10 for two range hoods; $156.00 for two garage doors for which the defendant refused to pay on the grounds that they had been allowed to lie out in the weather; and $24.48 for three 'overhead door kits'. Against this total $25.00 was allowed as a credit due to noninstallation of cabinets on Lot 16; a $15.00 credit arises from an item that was never explained in the evidence; and a $66.10 credit arises from other services about which there is no dispute. In addition to his answer, the defendant filed a counterclaim alleging that plaintiffs had wrongfully delayed their work of installation of the garage doors and to promptly 'perform other work' to the defendant's damage in the amount of $750.00; and that, due to plaintiffs' non-performance, defendant had to secure and pay additional help to perform work which the plaintiffs were required under the contract to do.

We will first deal with the plaintiffs' cause of action. The plaintiffs tried this case and have submitted it to this court upon the theory that the issue is whether title had passed to the defendant. As stated in their brief, their position was and is that 'Respondent fully performed when the merchandise was delivered to Appellant.' In view of the nature of the plaintiffs' action; i.e., an action upon an account whereby they seek payment for items they allege they sold the defendant, the issue of title would not seem determinative. (That would certainly be true had this case been governed by the Uniform Commercial Code. Section 400.2--709 RSMo 1959, V.A.M.S. refers to actions for the price of goods and as Note 1 of the Uniform Commercial Code Comment states, the passing of title is immaterial to a price action.) The determinative issue is not one of sale but a question of contractual compliance; that is, whether the plaintiffs had substantially performed the obligations of their contract and thus be entitled to payment. However, as shown by the quotation from...