Smith v. Ray M. Dilschneider, Inc., 44604

• Court: United States State Supreme Court of Missouri
• Citation: 283 S.W.2d 631
• Docket Number: No. 44604,No. 2,44604,2
• Parties: R. P. SMITH, d/b/a Cape Asphalt Paving Company, Appellant, v. RAY M. DILSCHNEIDER, Inc., a Corporation, Respondent
• Decision Date: 14 November 1955

Page 631

283 S.W.2d 631 R. P. SMITH, d/b/a Cape Asphalt Paving Company, Appellant,
v.
RAY M. DILSCHNEIDER, Inc., a Corporation, Respondent. No. 44604. Supreme Court of Missouri, Division No. 2. Nov. 14, 1955.

Page 632

R. P. Smith, Cape Girardeau, for appellant.

Elliott P. Koenig and Vern H. Schneider, St. Louis, Rassieur, Long & Yawitz, St. Louis, of counsel, for respondent Ray M. Dilschneider, Inc.

DEW, Special Judge.

The plaintiff sued to recover from the defendant the reasonable value of work and labor alleged to have been furnished to the defendant under a subcontract in the construction of an airport at Gideon, Missouri. The defendant filed an answer denying liability and pleading breach of the contract by plaintiff, and filed a counterclaim for damages for such breach. At the close of the plaintiff's evidence the defendant offered a motion for a directed verdict in its favor, which the court sustained. Thereupon the defendant dismissed its counterclaim. From the judgment rendered on the directed verdict the plaintiff has appealed.

According to the petition the defendant was a general contractor for the construction of an airport and through exchange of correspondence entered into a written subcontract with the plaintiff for the various classifications of excavation named in the correspondence in the various quantities therein specified and at the various prices designated. The contract provided that the unit prices were based on the right of the plaintiff to perform all of the work covered by the classifications and for the prices named. The proposal was accepted by letter from the defendant subject to the plans and specifications of the project. The petition alleged further that the contract provided for certain progress payments to be made to the plaintiff which the defendant failed and refused to make; that plaintiff furnished the labor and material under said contract in the reasonable value of $29,447.16 on which the defendant has paid $8,581.88, leaving due the plaintiff the sum of $20,865.28, for which judgment is asked with interest from November 2, 1951, the date of the last work performed.

By its answer defendant, among other matters, admitted that a contract had been made by the defendant, as pleaded, except as to the exact date; denied that the unit prices were applicable only in the event that plaintiff should complete all of the work contemplated by the contract; denied that it had breached any agreement to make progress payments; or that the work was halted at any time due to the breach of the contract by the defendant; or that the plaintiff, upon the cessation of his operations, was entitled to the reasonable value

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of the work and labor specified; or that it had failed to make any payments due the plaintiff, and pleaded that it had made certain payments to plaintiff's creditors on the project, and had refused to make other payments because they were not due to the plaintiff; that it had been agreed that 10 per cent of the amounts due were to be retained by the defendant until completion of the job and approval thereof by the engineer; that plaintiff, as a condition precedent to the progress payments, had agreed to furnish lien waivers on lienable items, and that on numerous occasions plaintiff was requested to complete the work contemplated by his agreement, but failed to do so.

Further answering, the defendant filed a counterclaim and pleaded therein that under its general contract it had agreed with the owners to be subject to a liquidated damage of $30 a day for delay in the performance of his general contract; that it had entered into the subcontract with the defendant to furnish the labor and materials for a certain portion thereof on a unit price basic, with the final amount due subject to the approval of the consulting engineer upon final check of the total unit completed by the plaintiff; that plaintiff was notified June 19, 1951, to proceed with the work for which he had contracted; that plaintiff continued to work upon the project until on or about November 9, 1951, at which time plaintiff had completed approximately one-half of the job for which he had contracted, and that regardless of the repeated requests of the defendant so to do, plaintiff refused and failed to perform further work on the project, thereby breaching the terms of said contract; that due to plaintiff's improper finishing of the gravel in the roadway at the airport, improper drainage resulted and additional grading and additional gravel were required to repair the same; that due to plaintiff's delay in making proper preparations for the winter season, large quantities of dirt were washed into the apron and taxiways of the airport, requiring additional...