Stiel v. Turner Real Estate Co.
| Decision Date | 06 February 1923 |
| Docket Number | No. 17521.,17521. |
| Citation | 249 S.W. 107 |
| Parties | STIEL v. TURNER REAL ESTATE CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Chas. B. Davis, Judge.
"Not to be officially published."
Action by August H. Stiel against the Turner Real Estate Company. Judgment for plaintiff and defendant appeals. Affirmed.
Julius T. Bluench, of St. Louis, for appellant.
McLaren & Garesche and E. H. Wayman, all of St. Louis, for respondent.
The petition herein is in two counts. The first count seeks a recovery of $2,250, as the reasonable value of certain architectural plans and specifications alleged to have been prepared by plaintiff at defendant's request. Inasmuch as the trial court gave an instruction directing a verdict for defendant on this count, and plaintiff took an involuntary nonsuit as to said count, from which no appeal was prosecuted, this count need not be further noticed.
The second count of the petition alleges that on or about September 1, 1916, the defendant corporation was contemplating making certain changes and alterations in, and additions and repairs to, a building owned by it on the southeast corner of Eighth and Olive streets in the city of St. Louis, and on said day defendant, through its agents, orally agreed with plaintiff that if plaintiff would prepare plans and specifications for such work, so that the improvements would not cost more than $45,000, and. would make the building suitable for occupancy by a prospective tenant, a firm known as Greenfield Bros., and have the latter approve such plans and specifications, defendant would award to plaintiff a contract for the making of such improvements at the contract price of $45,000, wherein defendant would allow plaintiff a reasonable time within which to complete the work. It is alleged that plaintiff, acting and relying upon said agreement, prepared plans and specifications for such improvements, to cost $45,000, which would make the building suitable for occupancy by said Greenfield Bros., and that plaintiff caused the plans and specifications to be approved by Greenfield Bros; that, although plaintiff was at all times ready and willing to carry out the terms of his said agreement with defendant and enter into a contract in writing with defendant for the making of such improvements for the sum of $45,000, defendant, disregarding lts agreement with plaintiff, on or about September 23, 1916, tendered to plaintiff a contract requiring plaintiff to complete all of said work on or before January 15, 1917, and providing that, 12 the same were not completed by said date, plaintiff would pay to defendant $100 per day for each day after said date until the completion of the building, which said time limit, it is averred, was unreasonable and could not be agreed to by plaintiff without danger of serious financial loss. And it is further alleged that defendant, in violation of its said agreement with plaintiff, refused to extend said unreasonable time limit, and awarded the contract for the work to another, to plaintiff's damage in the sum of $10,000, for which sum he sues.
The answer admits that defendant, or: or about September 1, 1916, contemplated making the improvements to said building, mentioned in the petition, and denies generally the other allegations of both counts of the petition. Further answering both counts, defendant alleges that prior to September 1, 1916, in response to a suggestion by plaintiff that he would be able to construct the alterations, additions, and repairs contemplated by defendant for a srm not exceeding $45,000, If given an opportunity to enter into a contract therefor, defendant submitted to plaintiff for his execution a building contract in the usual form therefor, but that plaintiff failed to procure the bond required under the terms thereof; and that defendant, "after plaintiff's failure to so enter into said contract," let a contract, in the same form, for the same amount, and with the same requirements as to time of completion, to another contractor, who completed the work 15 days before the time fixed therefor by said contract. And the answer further alleges that, if plaintiff rendered any services in connection with any plans or specifications for such improvements, such services were rendered at the instance and request and for the benefit of Greenfield Bros. and for plaintiff's benefit, plaintiff being at the time engaged in manufacturing, selling, and installing fixtures, and being desirous that the said improvement be made so that he might provide the fixtures required by said prospective tenant. The reply is conventional.
The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff on the second count of his petition, in the sum of $2,750, and defendant has brought the case here by appeal.
The evidence shows that in the summer of 1916 certain negotiations were had between the defendant and the firm of Greenfield Bros., in regard to the leasing to the latter of defendant's property mentioned in the petition, and the remodeling of the building then upon the premises to conform to the requirements of the prospective tenant. It seems that these negotiations were conducted in considerable part through one Martin, a real estate agent representing Greenfield Bros., and one Zeibig, another real estate agent representing the defendant, though a member of the firm of Greenfield Bros. and officers of the defendant company took some part therein. It appears that defendant was willing to remodel the building, provided that the required improvements could be made for approximately 840,000 and that Greenfield Bros. would advance that sum, for which that firm would receive credit by way of a rebating of rents. The requirements of Greenfield. Bros., in. respect to the building, having been indicated, in a general way, the matter was referred to defendant's architect, one Graves, who prepared plans and specifications for the work. Bids were thereupon taken for the making of the improvements in accordance with these plans and specifications, and it appeared that the improvements thus contemplated would cost approximately $60,000; though there is some evidence for plaintiff that bids or estimates ran as high as $80,000. The defendant company being then unwilling to expend more than $40,000, the negotiations, it is said, apparently came to an end.
Thereafter, one Heimann, a designer of store fixtures, who was:negotiating with Greenfield Bros. In regard to the fixtures to be installed in the building, in the event It should be remodeled and let to said firm, called the matter to the attention of plaintiff, an architect and contractor. And on or about September 1, 1916, plaintiff and Heimann met with defendant's agent, Zeibig, in the latter's office; Martin and a member of the firm of Greenfield Bros. being present. According to the testimony of plaintiff and Heimann, Zeibig told plaintiff that if he could produce a set of plans and specifications, acceptable to Greenfield Bros, and also to the defendant, under which the cost of the improvements to the building would not cost more than $45,000, defendant would award the contract to plaintiff for the making of 1the same; nothing being said as to the time in which the work should be completed. It appears from plaintiff's testimony that, with the assistance of a draftsman named Solarmann, he thereupon prepared plans and specifications, along the general lines of the original plans prepared by defendant's architect, under which the finished building would have the same general appearance as that designed by defendant's architect, but which contemplated certain changes in the material used in parts of the construction, decreasing the cost thereof; and that the plans and specifications thus prepared by plaintiff were by defendant referred to its architect, on or about September 20, 1916, and were by him approved. The record shows that a written contract was thereupon prepared by defendant's architect, dated September 23, 1916, designed to be executed by plaintiff and defendant for the making by plaintiff of the improvements mentioned, under and in accordance with the plans and specifications prepared by him; and that a bond was in Like manner prepared, to be executed by the plaintiff and a surety or bonding company. A copy of this contract—unsigned by defendant—was delivered to plaintiff, together with the bond. It appears that plaintiff signed his name to the contract, but did not return it to defendant, and that the bond was never executed. This written contract provided for...
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