Sears v. Kistner, KCD

Decision Date08 August 1977
Docket NumberNo. KCD,KCD
Citation555 S.W.2d 74
PartiesRobert SEARS, d/b/a Sears Construction, Plaintiff-Respondent, v. Francis KISTNER and Elsie L. Kistner, Defendants-Appellants. 28499.
CourtMissouri Court of Appeals

R. Leroy Miller, R. Max Humphreys, Allan D. Seidel, Miller, Humphreys & Seidel, Trenton, for defendants-appellants.

James S. Stubbs, Chillicothe, for plaintiff-respondent.

Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J DIXON, Judge.

Defendants appeal from a judgment for plaintiff in a court-tried case. The issues raised involve sufficiency of the evidence. The judgment is affirmed.

The evidence offered by Sears showed Francis and Elsie Kistner came to his home on September 20, 1974 and made inquiries about building a home for them on a foundation. The following morning he and his wife, who was his business partner in the home construction business, went and inspected the foundation. A blueprint for a precut home was discussed. Changes had to be made on the blueprint since the size of the Kistners' foundation did not conform to the size of the precut house. Later that same afternoon, Mrs. Kistner returned to Sears' office with some additional blueprint modifications and signed a contract authorizing work on the home to commence. At that time, she was given a "cost analysis sheet" which contained sums for heating, plumbing and labor to complete the building. Before construction commenced, Mrs. Kistner had made additional changes in the blueprints. These modifications were necessary since an outside contractor had poured concrete for a fireplace on the Kistners' foundation at a location determined by the Kistners. The Kistners lived in a trailer approximately one hundred feet from the site of their new home during the construction. Sears presented Mrs. Kistner with a bill for final payment for the work done, but she balked at paying it as she was unhappy with the location of the utility room and the fireplace. She also presented Sears with a list of other imperfections in the house. He and his carpenters made the repairs on the defective items. Kistner told her that he could not move the fireplace, but would rearrange the location of the utility room if she desired. Sears asked Mrs. Kistner if everything was proper, and she responded that the door still needed to be fixed. He assured her that it would be replaced. She then told him that she would make arrangements with the bank for the final payment, but this bill was never paid. Sears testified that he had secured a replacement door and that he was ready to put it in but that the Kistners refused to let him do so.

The foreman on the job said he had constructed the utility room exactly where Mrs. Kistner directed it to be placed. He also stated that Mrs. Kistner told him that there were no further repairs needed.

Mrs. Robert Sears stated she had been present during the negotiations between her husband and the Kistners in connection with his building a home for them. She had prepared the cost analysis sheet for the project. A total of $10,351 and "a few cents" were still owed by the Kistners for the work performed by her husband.

The heating and air conditioning contractor testified that he had put in the heating system at the Kistners' home and that it worked properly and met F.H.A. standards.

At the close of plaintiff's evidence, defendants' attorney made a statement that no submissible case had been made against Mr. Kistner. The court proceeded to overrule this "motion."

The defense called a residential building contractor who testified that he had been requested by Mrs. Kistner to inspect her completed home. He listed various deficiencies: air leaks, cracks between the bath tub and the bathroom wall, cabinets that did not fit properly, poor room layout, and a damaged front door. He estimated it would cost between fifty and one hundred dollars to replace the door, under one hundred dollars to fix the cabinets, and that repair of the air leakage would be minimal. He admitted the materials used in the home were acceptable in the building trade and that the defects would be considered minor in the industry.

Elsie Kistner reiterated the deficiencies mentioned and denied she ever told Mr. Sears or anyone else that no more repairs were needed. She admitted she had decided where to locate the fireplace.

The "points" in appellants' brief are as follows:


That the judgment against Francis Kistner is against the weight of the evidence and is clearly erroneous.


The court erred in overruling defendants' motion for directed verdict at the close of plaintiff's evidence for failure of proof of the contract.


The amount of the verdict is against the weight of the evidence.

The points on the face of it raise no proper issues for determination since they do not comply with Rule 84.04(d). They are abstract statements of law without any attempt to relate the statements to either the evidence or the actions of the trial court. The second point has no place in a court-tried case. The standard of review of a court-tried case under Rule 73.01 is established in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976):

"(T)he decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is 'against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong."

Despite the deficiencies in the "points," the...

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3 cases
  • Plaster v. Standley
    • United States
    • Missouri Court of Appeals
    • July 26, 1978
    ...of the motion when they thereafter produced exhibits and testimony relative to plaintiff's claim in the cause. Sears v. Kistner, 555 S.W.2d 74, 76(2) (Mo.App.1977); Cragin v. Lobbey, 537 S.W.2d 193, 196(6) (Mo.App.1976); Morris Plan Co. v. Universal Credit Co., 237 Mo.App. 365, 374, 168 S.W......
  • Williford v. White
    • United States
    • Missouri Court of Appeals
    • July 13, 1979
    ...Corning Bank v. Hager, 560 S.W.2d 892, 894 (Mo.App.1978); Brewer v. Blanton, 555 S.W.2d 381, 386(12) (Mo.App.1977); Sears v. Kistner, 555 S.W.2d 74, 76(1) (Mo.App.1977); Barber v. M. F. A. Milling Co., 536 S.W.2d 208, 209-210(4) and 211(13) (Mo.App.1976); Cavaness v. Armstrong, 525 S.W.2d 4......
  • Moravac v. Dave Littleton Ford, Inc., WD
    • United States
    • Missouri Court of Appeals
    • August 25, 1992
    ...the contract, the trial court had ample evidence of the contract and its terms to address the merits of the case, Sears v. Kistner, 555 S.W.2d 74, 77 (Mo.App.1977) (petition alleged agreement which defendants admitted to, so no issue remained but breach and This court concludes that all the......

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