Shepard v. Glick, 24480

Decision Date06 June 1966
Docket NumberNo. 24480,24480
CourtMissouri Court of Appeals
PartiesCleadis SHEPARD, d/b/a Raytown Plumbing & Sewer Service, Respondent, v. Mrs. Marvin W. GLICK, (Bessie McGinty), Appellant.

Elwyn L. Cady, Jr., Kansas City, for appellant.

Richard T. Cole. Raytown, for respondent.

MAUGHMER, Commissioner.

This is a suit based upon an alleged oral contract under which plaintiff, in the spring of 1961, supplied materials, performed services and installed a sewer line into a residence property located at 6209 Manning in Raytown, Missouri, which was owned by defendant and her husband, Marvin W. Glick. Mr. Glick died on October 16, 1962. This suit is agaisnt Mrs. Glick alone and seeks recovery of the compensation provided for by the contract. It was tried by the court without a jury. The court found that defendant had entered into the alleged oral agreement, and gave judgment for plaintiff in the sum of $990,34 (amount of services and materials furnished) plus interest from October 29, 1962, (the date upon which suit was filed) in the sum of $160, or a total judgment of $1150.34. It is conceded that the services and materials were furnished and no criticism is leveled as to the amount of the charges. Defendant, however, contends that the contract was made only with Mr. Glick, who was her husband at that time. She denies there was any contract with her or with her and her husband jointly.

The plaintiff, Cleadis Shepard, was the owner of and did business as the Raytown Plumbing & Sewer Service. He testified that about March 1, 1961, a main sewer line became available to the property at 6209 Manning, owned by defendant and her then husband, Marvin W. Glick. He said that he met one evening in the Glick home with Mr. and Mrs. Glick and a neighbor, Mr. Plost, who wanted an easement from the Glicks for use in his sewer connection. The easement was granted. Plaintiff said that the Glick property had sublayer of rock which it was necessary to go through, that springs were tere and water filtered through and the Glick basement was full of water most of the time. Plaintiff's testimony was that he contracted to install and connect their residence to the sewer. He said that because the existence of springs and rock made it impossible to accurately estimate the amount of work which would be required, the contract was on a 10 percent cost plus basis. Mr. Shepard purchased a sewer permit and stated: 'I brought in the material and brought in my machine and my men, and we hit rock, and I brought in a jackhammer, and I had two gasoline pumps running most of the time, a winch and a torque gear, because we was working in a ledge of rock which was fed by springs'. 'We installed a tie-on to the sewer and I picked up the plumbing and I had to stay low enough to pick up their basement when I went in and removed their sump pump and put in a subsoil drain on the outside of their house'. Plaintiff's charge for this work was $1,015.34, but Mrs. Marvin Glick paid $25 by check, leaving a balance of $990.34 still due.

Mr. Shepard said he submitted his bill to the Glicks and was told: 'There was a loan set up for it and I would be paid just as soon as the loan was approved'. 'I was told this by both parties'. He said he talked to both Mr. and Mrs. Glick about doing the work on a cost plus basis, that Mrs. Glick 'was never out of our presence' while we talked and she said: 'If it will stop us flooding out every time that there comes a little rain we want the sewer put in'. He testified that Mrs. Glick told tim: 'We will pay you as soon as we get the money from the loan.'

The parties agree that the materials were furnished, the labor was performed and the charges are reasonable and proper. Mr. Charles A. Runsinger, Jr., Vice President and Cashier of the Laurel Bank in Raytown, testified that Mrs. Glick attempted to secure a loan from the bank and that he personally discussed it which her in the spring of 1961. He understood 'this money, $1,000, was needed to pay for the sewer hookup'. The loan was never made.

The defendant, Mrs. Marvin w. Glick, (now Bessie McGinty by marriage) testified. She is an industrial nurse. She did not deny calling plaintiff to come to their home regarding the sewer. She said he was there several times; that the contract was with her husband, and that her husband was the one who tried to secure the bank loan. She said she knew that rock had to be removed before the sewer line could be installed, knew springs were in the yard and knew they had a basement water problem. She agreed that she wanted to connect with the sewer and wanted to get the basement drained. She denied that she ever promised to pay plaintiff and was unable to recall if she told him the bank loan 'had fallen through', but she would obtain another one and pay him. The record does not reveal if title to this residence property was in the names of both Mr. and Mrs. Glick.

The sole issue on appeal is whether or nor Mrs. Glick was a party to the oral contract under which plaintiff agreed to and did connect the Glick premises to the sewer. On appeal defendant contends that she was not a party to the contract and the verdict and judgment should have been in her favor, that there is no evidence that she promised to pay, that her husband was the contracting party and that 'proof of a joint contract does not support a definite and certain contract between plaintiff and defendant.'

Section 510.310, V.A.M.S. and Civil Rule 73.01(d) V.A.M.R. prescribe the scope of our review and tell us:

'The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shll 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'.

This court in Home Trust Co. v. Shapiro et al., 228 Mo.App. 266, 64 S.W.2d 717, 733, said it this way:

'* * * it becomes the duty of this court to review the evidence, the findings, and decree below, and to render such judgment as in its opinion conforms to the law and the evidence, deferring where it may to the conclusions reached by the chancellor; but, if, upon review of the entire record, it is unable to agree with his conclusions and judgment, it becomes its duty to follow its own conclusions and order judgment in conformity therewith.'

It is true as defendant contends on appeal that in order...

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4 cases
  • Wired Music, Inc. of the Great Midwest v. Great River Steamboat Co.
    • United States
    • Missouri Court of Appeals
    • June 14, 1977 the nature and the extent of the personal obligations imposed, essential to the formation of a binding guaranty. See Shepard v. Glick, 404 S.W.2d 441 (Mo.App.1966). We are aware that the Florida Court of Appeals in Steele v. Hallandale, Inc., 125 So.2d 587 (Fla.App.1960), held that where......
  • M. K. Metals, Inc. v. Container Recovery Corp., 80-1242
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 17, 1981 certain or capable of being rendered certain. Thos. J. Sheehan Co. v. Crane Co., 418 F.2d 642 (8 Cir. 1969); Shepard v. Glick, 404 S.W.2d 441 (Mo.App.1966); Macy v. Day, 346 S.W.2d 555 (Mo.App.1961); Brandt v. Beebe, 332 S.W.2d 463 (Mo.App.1959); Bearup v. Equitable Life Assur. Soc. of t......
  • Sweetarts v. Sunline, Inc., 19765.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 15, 1970
    ...contract be certain or capable of being rendered certain. Thos. J. Sheehan Co. v. Crane Co., 418 F.2d 642 (8 Cir. 1969); Shepard v. Glick, 404 S.W.2d 441 (Mo. App.1966); Macy v. Day, 346 S.W.2d 555 (Mo.App.1961); Brandt v. Beebe, 332 S.W.2d 463 (Mo.App.1959); Bearup v. Equitable Life Assur.......
  • Kosher Zion Sausage Co. of Chicago v. Roodman's, Inc.
    • United States
    • Missouri Court of Appeals
    • June 13, 1969
    ...that one party perform and that the other party compensate for such performance. (Bailey, supra, at 219 S.W.2d 333(4); Shepard v. Glick, Mo.App., 404 S.W.2d 441(2).) As said in Roper v. Clanton, Mo.App., 258 S.W.2d 283(5); 'The agreement between the parties arises from their intention impli......

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