Statler Mfg., Inc. v. Brown

• Decision Date: 30 April 1985
• Docket Number: No. 13726,13726
• Citation: 691 S.W.2d 445
• Parties: STATLER MANUFACTURING, INC., James L. Statler, Wyatt Statler, and Nadine Lewis, Plaintiffs-Appellants, v. Thomas C. BROWN and Eugene Ferguson, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 445

691 S.W.2d 445

STATLER MANUFACTURING, INC., James L. Statler, Wyatt Statler, and Nadine Lewis, Plaintiffs-Appellants, v. Thomas C. BROWN and Eugene Ferguson, Defendants-Respondents.

No. 13726.

Missouri Court of Appeals,

Southern District,

Division Three.

April 30, 1985.

Motion for Rehearing or to Transfer Denied

May 21, 1985.

Application to Transfer Denied

June 25, 1985.

William C. Vandivort, Lew Polivick, Vandivort and Polivick, Sikeston, for plaintiffs-appellants.

G.H. Terando, Little, Million, Terando, Schellhammer & Assoc., Ted M. Henson Jr., Scott and Henson, Poplar Bluff, for defendants-respondents.

FLANIGAN, Judge.

On January 10, 1980, plaintiffs, as "contractor," and defendants, as "owner," entered into a written agreement for the construction, by the contractor, of a building. Each side dealt with the other through their respective agents, primarily plaintiff James Statler and defendant Eugene Ferguson, and the authority of the agents has not been questioned. For simplicity, the four plaintiffs will be referred to as "the contractor" and the defendants will be referred to as "the owner." ¹

The agreement recited that the building "shall be constructed on the owner's property, approximately located on the south side of U.S. Highway 60, six hundred feet east of the Poplar Bluff airport." The "contract sum," to be paid by the owner to the contractor for the performance of the contract, was $413,286, and it was to be paid in installments due at various stages of the work. Ten percent of the contract sum was due upon signing of the contract and the owner paid the contractor $41,328.60 at that time.

Shortly after the signing of the contract the contractor commenced work, primarily readying the job site for delivery of the building, a "pre-engineered" steel building to be manufactured by Behlen Manufacturing Company of Columbus, Nebraska. The agreement required the owner to pay the contractor 25 percent of the contract sum upon delivery of the building to the job site.

On September 13, 1951, a previous owner of the land had conveyed to the city of Poplar Bluff "for the benefit of the general public at large, an easement and right-of-way for free and unobstructed passage of aircraft, by whomsoever owned or operated, in and through the air space over, above and across" the job site. The easement was recorded in October 1951.

On March 12, 1980, Walt Fuller, the manager of the Poplar Bluff airport, informed the owner that the building, if erected, would violate the easement. The contractor then ceased work. The contractor's evidence was to the effect that he informed the owner that the owner would "have to resolve the problem because the building was on order from Behlen and was scheduled to be delivered." According to the contractor the owner informed him that he had better not have the building delivered because "we ain't going to pay for it." This action ensued.

The contractor sued the owner for breach of the agreement and sought damages in the sum of $120,837.40 for "expenses in performing the agreement" and loss of profits. The owner counterclaimed for breach of contract and sought recovery for expenses allegedly incurred by the owner, including the down payment. The trial court, sitting without a jury, found the issues in favor of the owner, denied the contractor recovery on the petition, and awarded the owner $41,328 on the counterclaim. The contractor appeals.

The record justifies a finding that neither the owner nor the contractor had actual knowledge of the easement until March 1980, after the contractor had done considerable work.

Walt Fuller, a witness for the owner, testified that in March he "got in touch" with the owner and told the owner that the building "would be in the way of a clear zone that we had in the airport." Fuller testified as follows:

Q. Okay. The problem which arose with respect to construction of a building on land located near the Poplar Bluff Airport--that problem arose because the owners of the property did not own the air rights; is that right?

A. The City has an easement.

Q. Okay. The owners of that property do not own the air rights; is that correct?

A. That's correct.

Q. And that's what created the problem which you testified to; is that right?

A. That's right.

After Fuller had notified the parties that the proposed building, if erected, would violate the city's easement, the contractor notified the Federal Aviation Administration of the proposed construction. On May 20, 1980, the FAA wrote the contractor and informed him that the proposed structure "is located within a clear zone," and "would prohibit the installation of an approach light system in support of an instrument landing system." The letter also stated that the proposed structure was "a hazard and would have a substantial adverse effect on the safe and efficient use of navigable air space by aircraft."

Under cross-examination by the owner's counsel, the contractor testified that before the agreement was signed "I checked with the FAA to see if it was necessary to file a notice of proposed construction so that I could have in turn advised [the owner] that one would have to be filed and [the FAA] told me that it was not necessary." Referring to his correspondence with the FAA after Fuller notified the parties of the easement, the contractor said that filing the notice of the proposed construction with the FAA "was necessary only because the city of Poplar Bluff owned the air space above the ground that [the owner] wanted to build the building on."

The trial court found that "because of this easement, the proposed construction was located in a clear zone of the Poplar Bluff airport." (Emphasis added.) The trial court also found that there was a "conflict between the easement and the proposed construction." The record supports these findings.

The May 20, 1980 letter from the FAA did not purport to grant or deny consent to the proposed construction. The record shows the impediment to the erection of the building was the existence of the easement. The trial court also found, however, that certain provisions of the contract made it the duty of the contractor, and not the owner, to obtain relief from the easement.

Although the record does not reflect an attempt by either side to obtain, from the city, relief from the easement, it is a reasonable inference that relief would not have been granted in view of the airport manager's actions and the findings of the FAA, and neither side contends otherwise.

The contractor contends that the trial court erred in not finding that the owner, rather than the contractor, breached the contract because (a) the owner was obligated to provide a construction site on which the building could be erected but failed to do so, (b) the owner prevented the contractor's performance by instructing the contractor to stop construction and informing the contractor it would not pay for the building, and (c) the "true problem" was that the owner purchased the land subject to the easement and the easement prevented the construction. The contractor argues that the responsibility for the easement was that of the owner. The owner argues that under the contract it was the duty of the contractor to obtain relief from the easement.

For the reasons which follow, this court holds that the existence of the easement prevented the performance of the contract by the contractor, that the responsibility for the easement was that of the owner and not of the contractor, that the owner breached the contract by failing to obtain relief from the easement, and that it was the contractor, rather than the owner, who was entitled to recover.

If a contractor is prevented from completing the work by the act of the owner, the latter has breached the contract. Gruhala v. Lacy, 559 S.W.2d 286, 289 (Mo.App.1977); Ark Const. Co. v. City of Florissant, 558 S.W.2d 418, 422 (Mo.App.1977); Veterans Linoleum & Rug, Inc. v. Tureen, 432 S.W.2d 372, 376 (Mo.App.1968). Similarly, the contractor is excused from performing his contractual obligations if performance is rendered impossible by the act of the owner. Hillis v. Blanchard, 433 S.W.2d 276, 279 (Mo. banc 1968); Ellis Gray Milling Co. v. Sheppard, 359 Mo. 505, 222 S.W.2d 742, 748 (banc 1949); Kansas City Term. Ry. Co. v. Atchison, T. & S.F. Ry. Co., 512 S.W.2d 415, 422 (Mo.App.1974); Stein v. Bruce, 366 S.W.2d 732, 734 (Mo.App.1963); Cable v. Wilkins, 352 S.W.2d 50, 53 (Mo.App.1961); Goss v. Suburban Motors, 282 S.W.2d 864, 866 (Mo.App.1955); Ward v. Haren, 139 Mo.App. 8, 119 S.W. 446, 448 (Mo.App.1909); If a contractor has partly performed the work but is prevented by the owner from completing it, the contractor may cease work and sue for breach of contract. Curators, Etc. v. Neb. Prestressed Concrete, 526 S.W.2d 903, 911 (Mo.App.1975); Reid v. Kelly, 300 S.W.2d 542, 544 (Mo.App.1957). If the act of the owner prevents the contractor from performing the work, the contractor has the choice of suing on the express contract or suing on quantum meruit for the value of the labor and materials the contractor has furnished. Kansas City Structural Steel Co. v. Athletic Bldg. Ass'n, 297 Mo. 615, 249 S.W. 922, 923 (banc 1923); Rodgers v. Levy, 199 S.W.2d 79, 81 (Mo.App.1947); Ott v. Moore, 20 S.W.2d 166, 167 (Mo.App.1929).

"It is sufficiently obvious that a contract for the construction of a building, even in the absence of an express stipulation upon the subject, implies as an essential condition that a site shall be furnished upon which the structure may be erected." Guerini Stone Co. v. P.J. Carlin Const. Co., 248 U.S. 334, 340, 39 S.Ct. 102, 104, 63 L.Ed. 275 (1919). To similar effect see Fritz-Rumer-Cooke Co. v. United States, 279 F.2d 200, 201 (6th Cir.1960); F.J. Lewis Mfg. Co. v. Snyder, 37 F.2d 299, 300 (6th Cir.1930); Great Lakes Const. Co. v. Republic Creosoting Co., 139 F.2d 456, 464 (8th Cir.1943); Hensler v. City of Los Angeles, 124...