Snoqualmi Realty Co. v. Moynihan

• Decision Date: 10 February 1904
• Citation: 78 S.W. 1014,179 Mo. 629
• Parties: SNOQUALMI REALTY CO. v. MOYNIHAN et al.
• Court: Missouri Supreme Court

78 S.W. 1014

179 Mo. 629

SNOQUALMI REALTY CO. v. MOYNIHAN et al.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

BUILDING CONTRACTS — ACCOUNTING — EVIDENCE —FAILURE TO COMPLY WITH CONTRACT — DELAYS — CONSTRUCTION OF CONTRACT —TRADE TERMS—SURETIES — CHANGE OF CONTRACT—RELEASE—APPEAL—JURISDICTION.

1. Where one of the parties properly appeals to a certain one of the appellate courts, a cross-appeal of the other party must also be taken to the same court.

2. Where, in an action against a building contractor by the owner for the value of work done by the owner, which had not been properly done by the contractor, it appeared that plaintiff had properly rejected some materials and improperly rejected others, but there was no sufficient data for a determination as to the respective amounts, defendant was not entitled to credit for any part of the value of the materials rejected.

3. Findings of fact by a referee and the trial court on conflicting evidence will not be disturbed on appeal.

4. In an action on a building contractor's bond by the owner it appeared that woodwork put in by the contractor was not according to the specifications, but that, instead of taking it out, the owner painted it, and defendant objected to an allowance in favor of plaintiff of the cost of the painting, claiming that, if the work was not done according to the specifications, plaintiff should have made it conform to the specifications, and held defendant liable for the cost of so doing. Held that, the court having ruled in accordance with the contention, and charged defendant with the amount of a bid which plaintiff had obtained for the work, defendant, on appeal, could not complain of the ruling.

5. Where a building contract required San Domingo mahogany to be used in certain portions of the building, evidence was admissible to show that the phrase "San Domingo mahogany" was a trade term in the locality, and that it meant not necessarily mahogany grown in San Domingo, but a good figured mahogany equal in density to the San Domingo variety.

6. A building contract required that San Domingo mahogany be used in a portion of the building, and in an action by the owner on the contractor's bond for failure to do the work as required it appeared that the subcontractor having charge of the mahogany work had found it impossible to secure in the locality mahogany grown in San Domingo, but that he showed a sample of Mexican mahogany to the architect, who approved of the same, and it was shown that the phrase "San Domingo mahogany" was a trade term in the locality, meaning a good figured mahogany of the same density as the San Domingo variety. Held, that the contract meant by the phrase "San Domingo mahogany" any good figured mahogany of the density of that grown in San Domingo.

7. In an action on a building contractor's bond by the owner for failure of the contractor to properly perform his contract it appeared that plaintiff had caused a considerable amount of the work to be done over, but that he was not justified in such conduct as concerned the bulk of it, and he claimed damages for the cost of a watchman, and fuel for heating the building while the work of refinishing was in progress. Held that, the claim being in bulk, and there being no sufficient data for apportioning the claim between the part that plaintiff was entitled to and the part that he was not, there could be no recovery of such damages.

8. Where, in an action by the owner on a building contract, it clearly appears that the specifications under which the work was done were the specifications intended by the contract, the parties are bound thereby, notwithstanding that they did not identify the specifications as the contract required, but they were signed by the architect alone.

9. The fact that a building contractor put in a brick wall and certain additional supports not called for by the specifications, he making no claim for extra work therefor, could not operate to release the surety on the contractor's bond.

10. A building contract contemplated that alterations might be made in the plans and specifications, and that the architect should have power to add or omit work as might be deemed necessary, and that the contractor should be paid for additional work. The cellar of the building was not excavated to the depth contemplated, but the dimensions and amount of work were otherwise unchanged, and in an action on the contractor's bond the surety claimed that, if there had been any deviation from the specifications in other particulars, it was authorized by the architect, who had authority to do so. Held, that the surety was estopped to claim that the architect had not the power to order the omission of the excavation in question.

Appeal from St. Louis Circuit Court; Selden P. Spencer, Judge.

Action by the Snoqualmi Realty Company against Patrick J. Moynihan and others. From the judgment both parties appeal. Affirmed.

Geo. W. Lubke, for plaintiff. Johnson & Richards, Geo. H. Williams, Henry W. Allen, and Campbell & Thompson, for defendants.

MARSHALL, J.

These two cases are cross-appeals from the judgment of the circuit court of St. Louis in the case of Snoqualmi Realty Company, plaintiff, against Patrick J. Moynihan and the American Surety Company, defendants. The case is a suit upon a builder's bond for $10,000, Moynihan being the principal and the American Surety Company the surety on the bond, and the plaintiff the obligee in the bond. The plaintiff claimed $9,154.16 damages for the breaches of the bond. The defendants denied any breaches and all liability, and the surety pleaded release by virtue of various acts of the parties. On motion of the plaintiff, and without objection or exception by the defendants, the cause was referred to E. T. Farish, Esq., as referee. After a long and thorough trial the referee made an exhaustive, learned, and detailed report, covering 73 printed pages, in which he recommended a judgment for the plaintiff for $1,518.09, with interest at the rate of 6 per cent. from the commencement of the suit on September 28, 1898. Both parties filed extensive exceptions to the report. The trial court heard the exceptions, and in a forceful and very convincing opinion covering 15 printed pages overruled the defendants' exceptions and sustained the plaintiff's exceptions so far as to increase the plaintiff's recovery from $1,518.09, as recommended by the referee, to $1,847.69, and allowed interest thereon from the institution of the suit, and entered judgment for the plaintiff for $2,099.59. After proper steps, both parties appealed. Because the plaintiff's claim brought the case within the jurisdiction of this court, its appeal was allowed to this court. The defendants' appeal was allowed to the St. Louis Court of Appeals, and that court properly certified the case to this court, under the rulings of this court in Ellis v. Harrison, 104 Mo. 280, 16 S. W. 198, and Douglas v. Kansas City, 147 Mo. 428, 48 S. W. 851. Manifestly, the same case cannot be pending in two appellate courts at the same time, although upon cross-appeals, for incongruous results might ensue from inconsistent judgments rendered by the two courts. This case illustrates the rule. The defendant contractor claims that he owes the plaintiff nothing, and the defendant surety claims it was released from liability on the bond. The judgment against them was for $2,099.59. On the other hand, the plaintiff got a judgment for $2,099.59 upon a claim for $9,154.16, and appealed because it was not allowed the difference. If the Court of Appeals on the defendants' appeal should reverse the judgment, and hold that the plaintiff was entitled to nothing against the principal in the bond, or that the surety was released, and if this court should affirm the judgment on the plaintiff's appeal, or should hold that the plaintiff was entitled to even more than the amount for which it recovered judgment, a manifest incongruity and inconsistency would be the result. Hence the wisdom of holding that in such cases the case cannot be split up, but that the whole case must go to the appellate court that has jurisdiction of the appeal by either party.

The controversy is this: The plaintiff contracted with the defendant Moynihan to build for it a certain house, upon lot No. 66 in Bell Place, in St. Louis, according to plans and specifications drawn therefor by architect J. B. Legg, at an agreed price of $18,800. The contract was executed on November 7, 1896, and the work was to be completed by August 1, 1897. The work was not completed on October 31, 1897, and on that day the plaintiff took possession over the objection of the contractor. During the progress of the work the plaintiff paid the contractor the sum of $13,000. After differences arose, and after the plaintiff took possession, and to avoid the expense of mechanics' liens, the plaintiff, under a tripartite agreement between the plaintiff, the contractor, and the surety, paid to the subcontractors and materialmen the further sum of $6,590.69. The plaintiff concedes that the defendant contractor was entitled to $235 for extra wainscoting and to $15 for extra partition wall in third story, in addition to the contract price of $18,800; thus increasing the plaintiff's credit to $19,050. And thus the plaintiff shows that it overpaid the contractor in the sum of $540.69, for which it asks judgment. The plaintiff further claims that the contractor did not complete the work at the time agreed, and that by the terms of the contract it is entitled to recover $5 a day as liquidated damages from August 1, 1897, to November 1, 1897, aggregating $540, for the delay. The plaintiff further claims that the contractor failed to put into the house the kind and quality of the mahogany, cherry, bird's eye maple, and oak wood required by the specifications, and instead thereof the plaintiff was forced to have the work done over, at a cost to the...