South Side Plumbing Co. v. Tigges

• Decision Date: 01 July 1975
• Docket Number: No. 36079,36079
• Citation: 525 S.W.2d 583
• Parties: SOUTH SIDE PLUMBING CO., Plaintiff, v. Elmer H. TIGGES et al., Defendants. Oliver J. PELLOM d/b/a Oliver J. Pellom Real Estate Co., Defendant-Plaintiff-Respondent, v. Elmer H. TIGGES and Pearl L. Tigges, Defendants-Appellants. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 583

525 S.W.2d 583

SOUTH SIDE PLUMBING CO., Plaintiff, v. Elmer H. TIGGES et al., Defendants.

Oliver J. PELLOM d/b/a Oliver J. Pellom Real Estate Co., Defendant-Plaintiff-Respondent, v. Elmer H. TIGGES and Pearl L. Tigges, Defendants-Appellants.

No. 36079.

Missouri Court of Appeals, St. Louis District, Division Three.

July 1, 1975.

Harry J. Nichols, St. Louis, for appellant.

Edward D. Weakley, St. Louis, for respondent.

Joseph J. Becker, John R. Boyce, Clayton, for defendants.

GUNN, Judge.

Defendants-appellants Elmer H. Tigges ¹ and Pearl L. Tigges have appealed from a money judgment in favor of plaintiff-respondent Oliver Pellom for construction costs and contractor's fees arising out of the construction of the Tigges' home in St. Louis County and the impression of a mechanics' lien on the Tigges' property for the payment of the money judgment.

The issues which we consider on appeal as framed by the points raised by the Tigges and preserved for appeal are: 1) whether the judgment of the court-tried case is supported by substantial evidence; 2) whether the trial court erroneously permitted the alteration of a written construction contract in violation of the parol evidence rule. We find these issues in favor of the Tigges and reverse the judgment.

This case began with the filing of an equitable mechanics' lien petition by South Side Plumbing Company against the Tigges and Pellom and several other defendants arising out of the construction of the Tigges' home. Answers and cross-bills were filed, including a cross-bill by Pellom against the Tigges. Settlement and disposition has been made of all issues arising out of the original mechanics' lien petition and cross-bills except those between Pellom and the Tigges. Their dispute is now left for our consideration and determination.

Pellom, whose business is residential construction and real estate sales, and the Tigges had been social friends for many years. The first step toward the termination of that friendship was taken when the Tigges requested Pellom to build a new home for them. According to Pellom, he and the Tigges entered into an oral agreement whereby Pellom was to serve as general contractor in the construction of the Tigges' house. For his services as general contractor, Pellom was to be paid the customary fee of 10 percent of the total construction costs. Construction bids were received and architectural plans secured with the original cost of construction estimated to be $40,000. Although the Tigges initially indicated to Pellom that they had $18,000 with which to commence construction, as the bills came due, the Tigges did not have funds available for their payment, and Pellom arranged for a $20,000 loan for the Tigges with a lending institution. Funds from the $20,000 loan were soon exhausted. Due to construction change orders by the Tigges, total construction costs on the house based on bids had increased from the original estimate of $40,000 to $55,280.15. Pellom, once again, arranged for a loan for the Tigges, this time for $34,587.74 with a lending institution. The amount of the loan was placed in escrow. Critical to our determination of this case is the fact that on October 22, 1969, Pellom and the Tigges, along with the lending institution and the escrow agent, signed a construction and disbursing escrow agreement covering the construction of the Tigges' house. Both the date of the agreement and the agreement itself share equal importance.

Pellom claimed that further change orders by the Tigges boosted the final construction costs from the construction contract cost figure of $55,280.15 to $59,552.28; that, in addition, Pellom was to receive a 10 percent commission on the total construction cost, or $5,955.23. Pellom acknowledged that $1,000 of his fee had been paid out of the escrow agreement leaving a balance due him for his fee of $4,955.23, plus increased construction costs above the construction agreement based on the change work orders. It is important to note that according to the testimony of the contractors and Pellom all of the changes ordered by the Tigges took place before October 22, 1969, the date of the agreement. Over objection of the Tigges' attorney, Pellom presented evidence of various subcontractors and his own testimony that costs of construction due to change work orders of the Tigges had increased the total construction cost of the house above the $55,280.15 as contained in the construction agreement. The testimony as to Pellom's contractor's fee was that at the time of the execution of the construction agreement on October 22 Pellom advised the escrow agent that he 'had a 10% fee coming in there', indicating that his 10 percent construction fee was included in the total construction price of $55,280.15. Later in his testimony, Pellom contended that the construction agreement did not reflect his 10 percent fee. The basis of the Tigges' objection to Pellom's testimony and that presented by the subcontractors was that it represented an attempt to vary a written contract by parol evidence in violation of the parol evidence rule. The trial court overruled the Tigges' objection and entered a judgment for Pellom for $10,230.38 with $4,955.23 of the judgment representing the balance due on Pellom's fee and the remainder owing on increased construction costs due to the change work orders.

Before reaching the merits of the case, we comment on the argument raised by Pellom that the Tigges have not preserved their points of alleged error in their motion for new trial; that, therefore, we may not consider the Tigges' appeal. We reject Pellom's argument that deficiencies in the Tigges' motion for new trial preclude us from considering the appeal. No motion for new trial is necessary for appellate review of a court-tried case. Timmerman v. Ankrom, 487 S.W.2d 567 (Mo.1972); March v. Gerstenschlager, 436 S.W.2d 6 (Mo.1969); Russell v. Russell, 427 S.W.2d 471 (Mo.1968). As stated by Judge Laurance M. Hyde in Journal of the Missouri Bar, Vol. 26, No. 2, p. 72:

'. . . (A) court-tried case is not determined on appeal on allegations of error as a jury-tried case is. Instead, it is determined de novo on the facts and applicable law, with the appellate court having full authority to make its own findings of fact on the evidence that was or should have been considered by the trial court.'

Judge Hyde also noted, as an exception, that in the event a motion for a new trial were to be filed (even though not necessary) a constitutional question urged on appeal should be included in the motion to preserve the question on appeal. But that situation is not before us. The issue as to the need for a motion for new trial has been further clarified by the recently adopted Rule 73.01, subd. 2(b), V.A.M.R. ² It provides that: 'Neither a motion for new trial nor a motion to amend the judgment is necessary to preserve any matter for appellate review' in court-tried cases. Despite any deficiencies in the allegations stated in the Tigges' motion for new trial, we shall determine the case on the merits in light of our understanding that a motion for new trial is not necessary to preserve matters for review. McIntosh v. Frisinger, 507 S.W.2d 419, 425 (Mo.App.1974). As a motion for new trial need not be made at all, the filing of one which is imperfect should not prejudice the appellant's position on appeal.

We find that the controversy centers on the issue of whether the construction agreement of October 22, 1969 contains the complete agreement for the construction of the Tigges' house and whether the terms of that agreement may be varied by parol evidence on Pellom's behalf. The pertinent provisions of the contract as executed by the Tigges, Pellom, the lending institution and the escrow agent provide:

a) That the contractor (Pellom) agreed 'to fully construct the improvements . . . according to construction contract, plans and specifications for the contract amount, as shown in Schedule under paragraph 33, with all claims for labor and materials paid in full, free and clear from mechanics and materialmens liens . . .'

b) The construction contract amount as contained in the Schedule under paragraph 33 was shown to be $55,280.15, less $18,555.24 prepaid.

c) 'That no changes in or additions to the plans, specifications and construction contract under which this escrow is established shall be made without the written approval of all parties.'

d) 'That this agreement . . . shall comprise the entire agreement among the parties hereto. Any oral or written agreement between Owner (Tigges) and Contractor (Pellom) not presented to Escrowee and approved in writing by it, shall be of no force and effect.'

e) The Contractor (Pellom) agreed 'to furnish Escrowee with a detailed cost breakdown including names of all subcontractors and material suppliers, the amounts of their contracts, the amount of Contractor's anticipated profit and all other items for which payments are to be made by Escrowee and to immediately notify Escrowee of any change in said contract amounts or estimated costs.'

f) 'Not to permit any changes in or additions to said plans, specifications and contruction contract, without written approval of Owner, Mortgagee and Escrowee. . . .'

g) 'If at any time during the term of this agreement, Escrowee should determine that the construction contract amount is not sufficient to pay all costs incidental to the performance of the construction contract, the Contractor will, within seven (7) days after demand by Escrowee, deposit with Escrowee such additional funds as are necessary to pay such costs.'

h) 'To request payment of no portion of his profit until all costs of construction of improvements have been paid in full and the improvements have been accepted by Owner.'

i) The owner (Tigges) agreed 'to pay, or cause to be paid to Escrowee, all funds shown in Schedule under paragraph 33, all funds required for all extras hereafter authorized,...