Schroeder v. Prince Charles, Inc., s. 53023
| Decision Date | 08 April 1968 |
| Docket Number | No. 1,53024,Nos. 53023,s. 53023,1 |
| Parties | Alfred SCHROEDER, Plaintiff (Respondent and Appellant), v. PRINCE CHARLES, INC., a Corporation, and Terry Nicholson, Defendants(Appellants and Respondents) |
| Court | Missouri Supreme Court |
Daniel, Raskas, Ruthmeyer & Schneider, H. Hackson Daniel, Bernard A. Ruthmeyer, St. Louis, for defendants-appellants, Prince Charles, Inc., a Corp., and Terry Nicholson.
Robert V. Niedner, Paul F. Niedner, Niedner, Niedner & Moerschel, St. Charles, for plaintiff (respondent and appellant).
HIGGINS, Commissioner.
Upon trial without a jury, the court found that plaintiff should recover $23,567 on his petition and that defendants should recover $4,056 on their counterclaim 'offset against plaintiff's award.' Pursuant to such findings, judgment was entered for plaintiff against defendants for the difference of $19,511 and for a mechanic's lien on defendants' premises. By stipulation defendants are appellants and plaintiff is respondent. Appellants seek to have the net judgment set aside; respondent undertakes to support the court's rulings and, by cross appeal, seeks to have the 'offset' set aside and judgment entered for him in the full amount of $23,567.
A recital of pleadings and rulings is necessary to an understanding of the appeal points.
By original petition and amendments permitted during trial, plaintiff alleged that on September 21, 1965, he entered into a written contract with defendants to deliver dirt to defendants' Prince Charles Park, a proposed mobile home village, for 60cents per cubic yard, to compact and grade same for 15cents per cubic yard, and that he did deliver and compact at least 50,201 cubic yards of dirt; that, in addition, at the instance of defendants, he graded and moved 9,665 cubic yards of dirt from a certain ridge at an agreed price of 25cents per cubic yard; that he also did the grading for and installing of a culvert at the instance of defendants; that all such services were completed by July 15, 1966, by reason of which defendants became indebted to him in an amount, after allowing all credits, of $23,567, the amount of his prayer.
Defendants answered by general denial and counterclaimed, alleging entry into an aggrement with plaintiff September 21, 1965, for delivery of dirt at 60cents per cubic yard, for grading and compacting of same at 15cents per cubic yard, and that plaintiff delivered 37,240 cubic yards of dirt but did not compact or grade it to the agreed 'finish'; that they also agreed upon delivery of an additional 9,900 cubic yards of dirt for $1,500; that they also agreed upon grading of the ridge at 15cents per cubic yard, and that plaintiff graded 9,665 cubic yards at that price; that by reason of these allegations plaintiff has claimed a sum in excess of the amount to which he is entitled; and that plaintiff's failure to fully perform resulted in damage to defendants of $5,925. Defendants also claimed damages by way of interest accrued due to delayed performance and for 'loss of revenue.'
Plaintiff's reply admitted the 75per-cubic-yard price, as alleged in his own petition, but denied the allegation of the amount of dirt delivered and the allegation of failure to grade and compact. He denied the agreement to deliver 9,900 cubic yards of dirt for $1,500. He admitted the agreement to grade 9,665 cubic yards of dirt from the ridge, denied the 15per-cubic-yard price, and realleged the agreed price of 25cents per cubic yard on that item. The allegations of interest and loss of revenue were denied.
At the beginning of trial, plaintiff filed a motion to dismiss defendants' counterclaim and to strike paragraph 2 of the counterclaim which was defendants' allegation that plaintiff agreed to furnish 9,900 cubic yards of dirt for $1,500. The ruling on this motion is unclear, the record showing only that the 'motion to strike defendants' amended counterclaim * * * is * * * ordered granted.'
Also at the outset of trial, defendants orally moved to require plaintiff to elect between contract and quantum meruit as the theory upon which he would proceed, which motion was overruled. Defendants also requested and were denied a continuance which they sought on account of the ruling on their counterclaim and for taking plaintiff's motion to amend his pleadings 'with the case.'
Alfred Schroeder owned a hill from which he sold and transported dirt. In September 1965, he met with Terry Nicholson who showed him some land he and Prince Charles, Inc., wished filled. After examining the defendants' site and plaintiff's dirt, Mr. Schroeder and Mr. Nicholson went to the office of defendants' engineer, St. Charles Engineering Co., to discuss their transaction. On a later day, September 21, 1965, they returned to St. Charles Engineering Co., and executed a document drawn by Terry Nicholson:
This letter is to confirm our arrangement regarding dirt. I agree to deliver to Prince Charles Park, a proposed mobile home village on Highway 94 North, dirt at the price of 60cents a cubic yard on the site as directed, and I can provide up to 60,000 cubic yards at this price.
Said price does not include any grading or compaction which, if required, shall be by separate agreement.
Yours truly,
Alfred Schroder
Terry Nicholson
9/21/65
Compaction & grading to fewish grades to add 15cents a cubic yard more no detail grading.
Plaintiff could not begin this work until receipt of a cut sheet showing grades and fills. The cut sheet was dated December 21, 1965; grade stakes were thereafter set and plaintiff began hauling dirt. He hauled dirt in December, 1965, and in January and March, 1966, by which time he had hauled about 40,000 cubic yards. He could not haul in February due to bad weather conditions. In March he was told to stop hauling from his hill and to start digging a lagoon from which defendants anticipated obtaining 22,000 cubic yards of fill, but their calculations went awry when the water table was found to be higher than expected. He did not haul dirt in April or May due to wet weather. He resumed hauling in June and continued in early July until told to stop by defendants following disagreements over plaintiff's demands for money. When plaintiff stopped hauling, he figured that he had delivered about 60,000 cubic yards of dirt; defendants' engineers computed the amount 'based on our cross section and the holes that we dug' at 50,201 cubic yards. Plaintiff stated he 'rough graded' and compacted the fill, using a scraper and earth movers; defendants stated it was necessary to employ Koepke Grading Company to complete the site grading. They paid Koepke by three checks, two of which totaled $4,056. Plaintiff's version was that these amounts, in all $6,056, were made necessary by defendants' engineers' errors.
Mr. Schroeder stated he was instructed, as an item in addition to the written contract, to grade a ridge on defendants' property, to haul dirt from it and scatter it as fill on the property. According to him, the price for this was agreed to be 25cents per cubic yard and defendants' pleadings concede the amount of grading and dirt on this agreement to be 9,665 cubic yards, the only dispute being the price on this item which they claim was 15cents per cubic yard. The lagoon, although not the subject of this suit, is discussed in connection with the amounts of dirt moved and the work done by plaintiff. It appears that, pursuant to yet another agreement for construction of the lagoon, plaintiff moved 12,400 cubic yards of dirt for which he was to be paid at the rate of 25cents per cubic yard. This item needs to be mentioned here because the total payments acknowledged by plaintiff from defendants cover this item as well as the matters which are the subject of this suit.
Before commencing to haul dirt after December 21, 1965, Mr. Schroeder was furnished a culvert pipe and requested by defendants to install it, which he did, such services being of a reasonable value of $400.
In addition to matters already mentioned, defendants' case consisted of testimony disputing plaintiff's evidence of quantities and prices, suggesting delays occasioned by plaintiff, and describing the need for additional compacting and grading in order to complete site preparation done by Koepke.
Payments to plaintiff were made by two checks: $10,000 March 23, 1966, and $10,000 June 20, 1966.
The court's findings and judgment are supported by this evidence, which also warrants these computations:
Due plaintiff
50,201 cubic yards of dirt delivered, graded, and
compacted per written contract at 75 cents per
cubic yard $37,650.75
9,665 cubic yards of dirt graded and hauled from
ridge at 25 cents per cubic yard 2,416.25
12,400 cubic yards of dirt moved in construction
of lagoon at 25 cents per cubic yard 3,100.00
Construction of culvert 400.00 $43,567.00
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Less credit due defendants by part payment 20,000.00
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Judgment due plaintiff $23,567.00
"Offset" by judgment due defendants for work done
to "finish" grading and compaction 4,056.00
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Net judgment due plaintiff $19,511.00
Appellants' first contention is that the court erred in refusing their request for continuance because they 'did not have an adequate time to examine said pleadings and determine their effect upon the trial strategy of appellants, especially in the light of the court's taking one of these pleadings under submission and making no ruling on it prior to...
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