Southard Const. Co., Inc. v. Structural Systems, Inc., 50676
| Decision Date | 04 August 1986 |
| Docket Number | No. 50676,50676 |
| Citation | 715 S.W.2d 560 |
| Court | Missouri Court of Appeals |
| Parties | SOUTHARD CONSTRUCTION COMPANY, INC., Plaintiff-Respondent, v. STRUCTURAL SYSTEMS, INC., et al., Defendants-Appellants. |
Donald E. Heck, Clayton, for defendants-appellants.
Martin Schiff, Clayton, for plaintiff-respondent.
Defendant-appellant, Structural Systems Incorporated, appeals from the judgment of the Circuit Court of St. Louis County granting summary judgment to plaintiff-respondent Southard Construction Company, on Southard's claim for the unpaid balance allegedly due it under a subcontract.
In October of 1977, Structural Systems contracted with Howard and Peggy Price, doing business as Howard's Commercial Turf, to do some asphalt paving work and some construction work at the office of Howard's Commercial Turf at the Spirit of St. Louis Airport in Gumbo, Missouri. In November of 1977, Structural Systems subcontracted the asphalt paving work to Southard Construction Company for $11,885.00. However, Structural Systems paid only $3,700.00 of the contract price. Southard's action was for the remaining $8,185.00 that it claimed was due under the contract.
Structural Systems, in its answer to Southard's petition, denied generally all allegations in the petition. It then impleaded Howard and Peggy Price as third party defendants, claiming that the Prices had paid only $277,120.86 of the $292,877.00 due it under its contract, leaving a remaining balance allegedly due of $15,756.14. In paragraph five of its third party petition Structural Systems also stated that the Prices failure to pay that balance was based "among other things" on their assertion that the asphalt paving work subcontracted to Southard was done "improper[ly] and not in a good and workmanlike manner." In its answer to Structural Systems' third-party petition, the Prices do contend that "Third-Party plaintiff [Structural Systems, Inc.] has not complied with the conditions, plans and specifications of the agreement" between them and Structural Systems; and that they therefore do not owe the $15,756.14. However, their answer does not specify which part or parts of the work do not comply with the contract requirements. Howard and Peggy Price also filed a counterclaim against Structural Systems alleging damages caused by Structural's failure to complete the work called for under the contract, which allegedly resulted in the Prices being forced to hire another contractor to complete the work.
Following its receipt of Howard and Peggy Price's answer to the third-party petition, Southard requested that Mr. and Mrs. Price admit that: "All of the asphalt paving and improvements performed in your [their] behalf, ..., was furnished and performed in a good and workmanlike manner free from any defects." Southard further requested that the Prices admit that neither of them "has any complaint or criticism with the quality of the asphalt paving job or any part thereof." In response to Southard's Request for Admission, the Prices stated that, while certain other unspecified work under its contract with Structural Systems was not acceptable, "[a]ll deficiencies in the original asphalt paving work performed by plaintiff Southard Construction Company have been corrected, and the asphaltic work as corrected is satisfactory and of good quality." There is thus no indication in the record that the Prices' alleged failure to pay the full contract price to Structural Systems, under their contract with Structural, was in any way due to any failure by Southard Construction to perform its obligations under its subcontract.
Following receipt of the Prices' answers to its Request for Admissions, Southard made a motion to sever its action against Structural from the third party action between Structural and Howard and Peggy Price. Southard also made a motion for summary judgment against Structural Systems and supported that motion with an affidavit filed by its president and chief operating officer, Jimmie O. Southard. Paragraphs three and four of Mr. Southard's affidavit stated:
3. Plaintiff fully performed all of its obligations under ... [its] contract with defendant [Structural Systems] in a good and workmanlike manner, and the benefits of said asphaltic paving improvements have been accepted by the owners of Howard's Commercial Turf, namely Howard B. and Peggy A. Price.
4. The defendant, Structural Systems, Inc., has paid to plaintiff the sum of Three Thousand Seven Hundred Dollars ($3,700.00) on or about May 15, 1978, in partial satisfaction of aforesaid contract amount, but has failed and refused to pay all or any part of the remaining balance of Eight Thousand One Hundred Eighty-Five Dollars ($8,185.00).
Based on the pleadings, the admissions of Howard and Peggy Price, and this affidavit, the trial court...
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