Simon Devine Welding Co. v. Kuhn

• Decision Date: 17 November 1959
• Docket Number: No. 30225,30225
• Citation: 329 S.W.2d 249
• Parties: SIMON DEVINE WELDING COMPANY, Inc., a Corporation (Plaintiff), Respondent, v. Catherine KUHN (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 249

329 S.W.2d 249

SIMON DEVINE WELDING COMPANY, Inc., a Corporation (Plaintiff), Respondent, v. Catherine KUHN (Defendant), Appellant.

No. 30225.

St. Louis Court of Appeals, Missouri.

Nov. 17, 1959.

Motion for Rehearing or to Transfer to Supreme Court Denied

Dec. 15, 1959.

Blumenfeld & Abrams, Selden Blumenfeld, St. Louis, for appellant.

David H. McGhee, St. Louis, Melvin L. Hertzman, St. Louis, of counsel, for respondent.

ANDERSON, Judge.

This is an action to recover the reasonable value of labor and material expended in the repair of a steam heating boiler in an apartment building located in the City of St. Louis and known as 6275 Enright Avenue, and to establish a mechanic's lien. The building was owned by the Harry M. Fine Real Estate Company but title was in Catherine Kuhn as a straw party. The suit was brought by the Simon Devine Welding Company, Inc., the concern that did the repairs, against Catherine Kuhn. The trial resulted in a personal judgment against Catherine Kuhn and the establishment of a mechanic's lien against said property. From this judgment, defendant has appealed.

On November 2, 1953, Harry Fine, President of the Real Estate Company, employed Sam Karfield, a plumber, to repair a safety value on the boiler in question. Karfield examined the boilder and found that it was leaking and needed welding. Such work was not in Karfield's line, so he called on Mr. Eskridge, President of the Simon Devine Welding Company, and requested him to look at the boiler and give a price on the amount required to repair it. Karfield testified he went to Mr. Eskridge on his own, without any one instructing him to do so. Mr. Eskridge did look at the boiler and later called Mr. Karfield on the telephone and told him there was a leak in one of the sections of the boiler and evidence of other leaks. Eskridge also told Karfield that the boiler would have to be dismantled in order to make the necessary repairs. Karfield testified that he asked Eskridge how much it would take to repair the boiler, and Eskridge replied: 'Well, three to five hundred dollars.' Eskridge denied that he quoted a price for making the repairs, stating he could not do so because there was evidence that other sections of the boiler were deteriorated. Karfield told Eskridge to call Harry Fine about the matter, stating he could not give him the order. Eskridge testified that Karfield 'indicated that Harry Fine Real Estate Company had employed him and that they were the owner.' Eskridge did talk to Fine on the telephone that same evening and told him what had occurred prior to that. Eskridge testified he told Fine that the boiler had a pipe leading into it which had been repaired and replaced but the boiler would not hold water because the sections were deteriorated, with considerable leakage between two of the sections and evidence of more leakage through the entire boiler. Eskridge stated he told Fine that the entire boiler would have to be dismantled in order to find out the nature of the repair that would be necessary, and denied quoting an estimate of the cost of repairs.

Harry Fine had talked to Karfield prior to his conversation with Eskridge, and in that conversation Karfield had told Fine what had transpired and informed him that Eskridge had stated the job would run between $300 and $500. Fine testified that when he thereafter talked with Eskridge, he said to Mr. Eskridge: 'Mr. Eskridge, Karfield informs me he had you go out and look at the boiler at 6275 Enright, and you informed him it would cost between three and five hundred dollars to fix that boiler * * * why is there such a spread?', and that Eskridge replied: 'Well, that is the way it is, because when we get in there we might find something else, but the cost will be between three and five hundred dollars.' Fine further testified: 'I also informed Mr. Eskridge at the time that Karfield was not sent there for a leaking boiler; that he was sent there to fix a valve, and all of a sudden the boiler popped up leaking. * * * I informed him I would talk to Karfield again.' Fine further testified that he talked again to Karfield and in that conversation told Karfield to 'go ahead and take care of it.'

Thereafter, plaintiff commenced the repair of the boiler. The entire boiler, which consisted of eight sections, was dismantled. Five of the sections...