Service Const. Co. v. Nichols

CourtCourt of Appeal of Missouri (US)
Citation378 S.W.2d 283
Docket NumberNo. 8233,8233
PartiesSERVICE CONSTRUCTION COMPANY, Plaintiff-Appellant, v. Carl NICHOLS and Eugene Nichols, d/b/a Nichols Construction Company, and L. S. Lepchenske, Defendants-Respondents.
Decision Date24 April 1964

George B. Scott, Jr., Poplar Bluff, for plaintiff-appellant.

Clarence A. Powell, John W. Ringer, Powell, Jones and Ringer, Dexter, for defendants-respondents.

HOGAN, Judge.

Plaintiff, a corporation, instituted this action to recover for labor and materials furnished in the construction of a parking area and driveway, and to establish a mechanic's lien against the land upon which they were located. The claim for a mechanic's lien was dismissed at the close of plaintiff's case and only incidentally concerns us here. Upon trial to the court, plaintiff had judgment against the defendants Carl and Eugene Nichols, as the general contractors, upon their admission that they owed the sum of $503.84. After an unavailing motion for new trial, plaintiff has appealed, setting up error in the admission of certain evidence and maintaining that the trial court should have allowed the full amount of its claim, which was $3,122.15.

In April 1961 the defendants Nichols, under the name Nichols Lumber Company, or Nichols Construction Company, entered into a contract with Lepchenske and his wife for the construction of a filling station at the corner of U. S. Highway 60 and McCullen Avenue in Dexter, Missouri. Upon completion, the property was to be used as a Shell Oil Company service station, and the contract called for construction according to detailed plans and specifications provided by Shell. Though the contractual arrangements between Shell and the property owner do not appear of record and have no particular significance on this appeal, it does appear that Shell retained some measure of indirect control and supervision over the construction.

Among other things, the detailed plans called for the installation of an asphalt parking area and driveway, apparently to cover an area somewhat in excess of 1,100 square yards. The plans and specifications called for two-inch asphaltic concrete pavement to be laid over a six-inch rock base, and elaborate directions were provided for proportioning, mixing, placing and rolling the aggregate and asphalt to be used. Whether or not literal compliance with these was required, provided the end result was satisfactory, is left in some doubt by the record.

Some time early in September, Mr. Landuyt, who was president of the plaintiff corporation, approached the Nichols firm with a written 'proposal' concerning the pavement. The plaintiff offered to cover or pave an area of 1,143 square yards 'with two inches of asphaltic mix' at a cost of $2.10 per square yard. It was provided that the plaintiff was to furnish all materials, labor and equipment, and was 'to do the job in a workmanlike manner.' Upon acceptance, the proposal or offer was to constitute a contract between plaintiff and the Nichols firm.

Both parties admitted execution of the contract, and there seems to be no serious question that plaintiff did prepare the base and pave the driveway and parking area. The two principal areas of controversy upon the trial were whether, in the first place, the plaintiff had agreed to use the asphalt mix prescribed by Shell in the plans and specifications but had actually substituted a cheaper and inferior preparation, and, in the second place, whether the paving material laid down by the plaintiff was suitable for use as a service station driveway and parking area, regardless of its composition.

Though we do not seek to brush aside or ignore any of the arguments advanced here by the parties, we consider the first of these controversies or factual disputes to be largely immaterial upon this appeal. The defendants maintained that the plaintiff had represented it would use the asphalt mix called for by the specifications, but had in fact used another less expensive and less durable mix, and for that reason the pavement had proved unsatisfactory. The plaintiff, on the other hand, took the position that both parties had understood that the materials being furnished by the plaintiff did not meet the Shell specifications. So far as we can determine from the record before us, the evidence leaves this matter largely unresolved. Though various witnesses testified at considerable length concerning the composition and qualities of different types of asphalt mix, the terms 'asphaltic concrete' and 'asphaltic mix' appear to be generic terms, conveying different impressions to different minds at the same time. And though a great deal was made at the trial of the superior qualities of the so-called 'hot mix' as compared with a 'cold mix,' we cannot confidently say that the complexities of asphalt paving were sufficiently developed by the evidence for us to form a judgment whether plaintiff, by common custom and usage, implied that he would use one kind of mix and subsequently used another, or that the accomplishment of a satisfactory result depended upon the plaintiff's use of a 'hot mix' as against a 'cold mix,' as contended by the defendants. For that matter, the defendants' argument that they were misled into believing that the plaintiff would use the kind of pavement specified in the original contract is, in our view, somewhat overstated in light of the fact that the contract between plaintiff and defendants clearly states that it 'covers all agreements between us,' and in view of the fact that defendant Carl Nichols, being pressed as to what he actually said to the plaintiff's representative during their contract negotiations, stated that he had told Mr. Landuyt that 'as long as the Shell representatives were satisfied with the job * * * we would be tickled to death.'

Much more to the point upon the merits of this case is the controversy or dispute over whether the pavement laid down by the plaintiff ever 'cured out' or hardened sufficiently to become firm and stable enough for use as a service station driveway and parking lot. It was not seriously questioned by the defendants that the plaintiff company had done most, if not all, of the work which it had contracted to do. By means of a progress report or 'worksheet on cost' prepared by the plaintiff in the regular course of business, and introduced in evidence, it was shown that the plaintiff had, between November 2, 1961, and May 2, 1962, furnished labor and materials somewhat in excess of the original contract price, and it is conceded that paving material of some sort was put down. What the parties are in basic disagreement about, and the principal disputed issue at the trial, is whether the materials put down by the plaintiff ever actually became pavement.

While the plaintiff produced no witness who was present at all times, it sufficiently appears from the testimony of its officers, and from the records produced by the plaintiff at the trial, that work was begun on the project on November 2, 1961, and continued at various times until December 2, when, as defendant Carl Nichols put it, 'the weather set in bad,' and the plaintiff was obliged to suspend operation until April 3, 1962. Work was again resumed, and by May 6, 1962, the project was finished. If plaintiff's somewhat arbitrary cost figures are used, the total amount of labor, materials and equipment furnished somewhat exceeds the original contract price.

The defendants, who were unfamiliar with the subject of asphalt paving, did not undertake to supervise the plaintiff in the performance of the work and 'didn't go by during the construction period.' When the defendants did inspect the surface, a 'day or two' after it had been laid, defendant Carl Nichols observed 'bicycle tracks, depressions where kids had driven over it, and it wouldn't hold that up,' and when Mr. Nichols inspected the pavement again the following week, he found 'tire tracks' 'three-quarters to over an inch' deep, with water standing in them. Mr. Nichols then contacted Mr Landuyt and was told that 'it would cure out,' and the record indicates that the plaintiff then made several attempts to correct the soft condition of the pavement.

It is enough to say that their efforts were unsuccessful and that the pavement remained soft, although it is not at all clear why. We may infer from the record that asphalt paving of this type normally 'cures' or hardens over a period of two days to two weeks, and the plaintiff's officers insisted that the 'major portion' of the pavement did 'cure out' and would, in time, have been serviceable. The defendants' evidence left no doubt, however, that the pavement remained soft some six weeks after it was laid and was finally rejected by the Shell engineers as unsuitable for their purpose. Finally, the defendants were obliged to have the plaintiff's pavement removed and replaced, at a cost of $2,530.00, and upon the trial they conceded again that they owed the difference between the contract price and this cost of replacement.

On this appeal the plaintiff develops two principal points. First, the plaintiff maintains that the trial court should have excluded evidence bearing on the reasonable value of plaintiff's services because, as we understand, the case was submitted upon the theory that there had been a breach of an express contract, and therefore adequacy of the consideration was not in issue. In support of this argument, the plaintiff cites Young v. Hall, Mo.App., 280 S.W.2d 679, 681[3-5], in which this court held that recovery on a counterclaim based upon a breach of an express contract could not be sustained upon evidence supporting only a recovery in quantum meruit. The plaintiff further argues the sufficiency of the evidence generally, maintaining that the trial court should have found for the plaintiff in the full amount claimed.

To discuss the plaintiff's first point clearly, it is necessary to consider, at least...

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    ...have found for plaintiffs on either theory. Morris v. Western Cas. & Sur. Co., Mo.App., 421 S.W.2d 19, 21(1); Service Construction Co. v. Nichols, Mo.App., 378 S.W.2d 283, 290(12). Because of this and also because of the question as to the credibility of garnishee's witnesses, namely, defen......
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