Sharp Bros. Contracting Co. v. Commercial Restoration, Inc.

Citation334 S.W.2d 248
Decision Date04 April 1960
Docket NumberNo. 23119,23119
PartiesSHARP BROTHERS CONTRACTING COMPANY, a Corporation, Appellant, v. COMMERCIAL RESTORATION, Inc., a Corporation, Respondent.
CourtCourt of Appeal of Missouri (US)

Harry P. Thompson, Jr., Thomas J. Leittem, Kansas City, for appellant.

Irving Kuraner, Kansas City, Kuraner, Freeman, Kuraner, Oberlander & Lamkin, Kansas City, of counsel, for respondent.

MAUGHMER, Commissioner.

We have here a jury waived case. Plaintiff claims damages based upon defendant's nonperformance under an offer or under a subcontract which plaintiff asserts defendant made and entered into with plaintiff. The petition contains three counts, each alleging entry into the contract, each claiming alternatively $8,000 damages and respectively seeking recovery for breach of the contract, under estoppel and unjust enrichment. Defendant by its answer denied generally. The court heard the evidence, took the cause under advisement and thereafter made and entered its findings of fact, conclusions of law and judgment for defendant. Plaintiff's after trial motions were overruled and its appeal timely perfected.

The notice of appeal was filed April 27, 1959, and plaintiff's petition asks $8,000 in damages. On appeals taken prior to January 1, 1960, our monetary jurisdiction limit is $7,500. Mo.Const. Art. V, Sec. 3, V.A.M.S.; Section 477.040, V.A.M.S. Therefore, we first determine if we have jurisdiction. In Beasley v. Athens, 365 Mo. 158, 277 S.W.2d 538, the court ruled: The petition is not conclusive; jurisdiction of the Supreme Court, a court of limited jurisdiction, must affirmatively appear; if plaintiff's trial theory does not show more than $7,500 is involved, jurisdiction lies with the Court of Appeals--a court of general jurisdiction. Plaintiff's evidence in our case shows that its cost in doing the work was $6,301, which, after deduction of the $1,200 alleged contract price, leaves the utmost amount involved to be $5,101. Therefore, we hold that jurisdiction lies in this court.

Plaintiff, The Sharp Brothers Contracting Company, is a corporation engaged in the business of general contracting, with offices in Kansas City, Missouri. The defendant Commercial Restoration, Inc. is also a corporation, located in Kansas City, and does cement fininshing work.

Early in January, 1955, the City of Kansas City, Missouri, had prepared plans and specifications for extensive repairs, alterations and improvements for the overhaul facilities at the Mid-Continent International Airport. Sealed bids were to be submitted for the work. The bids were to be opened on January 18th. Defendant learned that plaintiff planned to bid on Contract No. 4, Engine Test Building, and under date of January 11, 1955, submitted to plaintiff the paper writing which finally resulted in this litigation. We set forth the pertinent parts thereof:

'Quotation from Commercial Restoration Incorporated

'Date January 11-1955

'Name of Job

T. W. A. Engine Test Building

'Location

Kansas City, Missouri

'We propose to furnish and install the above job, in accordance with the plans and specifications of the architect, unless otherwise noted under remarks.

'Finishing hand rubbed concrete inside and outside $1,200.00

'Remarks:

'Above quotations on our regular contract form will be mailed upon request.

'Prices quoted are subject to acceptance within 10 days from date. Thank you for the opportunity of quoting.

'W. S. Carter

'Commercial Restoration, Inc.'

(The typed insertions in the above are underlined. The nonunderlined wording is on the printed form.)

By its letter of January 17, 1955, defendant advised plaintiff 'Our quotation * * * is based on the interpretation that the inside surfaces of the exhaust and intake stacks do not have to be hand rubbed. If these surfaces are to be finished, add $800.00.' On January 18, 1955 the sealed bids were opened and plaintiff was awarded the general contract. However, on contracts for a city it is necessary that the City Council pass an ordinance formally awarding the contract before the successful bidder and contractor may proceed with the job. Such an ordinance was not passed covering this work until April 6, 1955.

On April 8th, plaintiff sent defendant a memorandum for signature and therein described the sub-job as follows: 'Finishing hand rubbed concrete inside and outside based on the interpretation that the inside surfaces of the exhaust and intake stacks do not have to be hand rubbed. For the sum of $1,200.00 Dollars.' Plaintiff's office copy of this memorandum was received in evidence and carried the notation 'Void--Sub-Contract Written.' Plaintiff prepared a written subcontract dated July 19, 1955, covering the proposal. Defendant neither signed nor acknowledged receipt of either the memorandum or the subcontract. Plaintiff's letter of August 5, 1955, to defendant expressed plaintiff's understanding that defendant was not going to perform the work.

The evidence indicates that Jack Seal, estimator for Sharp Brothers, called Commercial Restoration by telephone early in January and probably on the 17th. Mr. Seal indicated the specifications were not clear as to the exact amount of hand rubbing required, and he thought Commercial's bid was too low. That was the situation which prompted his call. Their conversation was just general on these subjects. Mr. Seal said he believed they used this particular bid in assembling the general over-all bid. Plaintiff's evidence, chiefly that of Mr. Don Sharp, president, was that it used its own workers in doing the cement finishing and hand rubbing required; that time card cost checks were kept and that the cost thereof was $6,301 or $5,101 in excess of the figure quoted by defendant.

Mr. Walter Scott Carter, president of Commercial, testified. He recalled more than one telephone conversation with Mr. Seal, plaintiff's estimator, prior to January 18th. All had to do with the amount of hand rubbing, patching and finishing that would be required. He said he had no further word from plaintiff until he received the memorandum of April 8th. The testimony also indicates that between January and April, Commercial had unsuccessfully endeavored to secure a subcontract on a Linwood school job from Sharp Brothers. This led to a somewhat strained relationship.

The court made the following pertinent Findings of Fact:

'1. Defendant's bid of January 11, 1955 (Plaintiff's Exhibit No. 1) was subject to acceptance within 10 days from that date.

'2. Plaintiff's employee, Jack Seal, did not accept the offer in his conversation with defendant on or before January 17, 1955.

'3. After the said conversation on or before January 17, 1955, no communication was made with respect to the said bid until April 8, 1955, when plaintiff sent defendant its purchase order No. 1403 (Plaintiff's Exhibit No. 3).

'4. Defendant's offer of January 11, 1955 was not accepted within 10 days from the date.

'5. There is no definite, uniform and known practice whereby the use of a bid of a subcontractor by a general contractor constitutes an acceptance of it.'

Based upon these findings of fact the court concluded: That defendant's offer expired ten days after January 11, 1955; that custom or usage may not be employed to extend or otherwise vary the ten-day limitation; that the use of defendant's bid by plaintiff (if it was used) did not constitute an acceptance of the bid; that defendant's bid was not ambiguous, but on the contrary, was unambiguous, and judgment should be for the defendant.

In jury waived cases the statute (510.310(4), V.A.M.S.) directs that: 'The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' The decisions similarly admonish us. McCoy v. McCoy, 360 Mo. 199, 277 S.W.2d 698, 703; Trotter v. Trotter, Mo.Sup., 316 S.W.2d 482, 484.

On appeal plaintiff contends that defendant's offer remained open for a reasonable time after the general contract was awarded; that even though defendant's written offer contained a ten-day limitation, equitable estoppel will forbid its enforcement; that the offer was irrevocable; that the general contract award to plaintiff legally resulted in an acceptance of defendant's offer; that the...

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  • Mitchell v. Mosher
    • United States
    • Missouri Court of Appeals
    • 30 janvier 1962
    ...Tel. Co., Mo.App., 298 S.W.2d 520, 522(2); Daly v. Schaefer, Mo.App., 331 S.W.2d 150, 152(2); Sharp Bros. Contracting Co. v. Commercial Restoration, Inc., Mo.App., 334 S.W.2d 248, 249-250(1)], or (b) where the prayer of plaintiff's petition 'is so frivolous as not to afford (the Supreme Cou......
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    ...recognized by Missouri courts in some cases, is not applicable to construction contracts, citing Sharp Bros. Contracting Co. v. Commercial Restoration, Inc., 334 S.W.2d 248 (Mo.App.1960). We find that case distinguishable from the facts here. In Sharp Bros., the subcontractor's bid expressl......
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    ...subcontractor's bid by a general contractor constitutes acceptance and creates a contract. Accord Sharp Bros. Contracting Co. v. Commercial Restoration, Inc., 334 S.W.2d 248, 251 (Mo.App.1960). Absent such evidence, Missouri courts have at times used the doctrine of promissory estoppel to r......
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