Stipel v. Piggott
| Decision Date | 09 February 1925 |
| Citation | 269 S.W. 942,219 Mo.App. 222 |
| Parties | MIKE STIPEL, Plaintiff, Respondent, v. DERWOOD L. PIGGOTT, et al., Defendants, DERWOOD L. PIGGOTT, Appellant |
| Court | Kansas Court of Appeals |
Rehearing Denied 219 Mo.App. 222 at 233.
Appeal from the Circuit Court of Jackson County.--Hon. Charles R Pence, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Denny Simrall and H. C. Waltner for appellant.
Ernest Wilson and Morrison, Nugent, Wylder & Berger for respondent.
This is an action to establish a mechanic's lien on certain property belonging to defendant in Kansas City, Missouri. There was a judgment and verdict in favor of plaintiff in the sum of $ 4371.45, and establishing a lien on the property in that amount. Although there were several defendants Piggott is the only one who appeals and wherever in this opinion the word "defendant" appears it will be understood to refer to appellant Piggott.
The facts show that on March 15, 1921, a written contract was entered into between plaintiff, the contractor, and defendant, the owner of the premises, providing for the erection of the building in question. Shortly thereafter and immediately subsequent to the commencement of the work upon the building, it was found that certain important changes in the plans and specifications were necessary. Thereupon, as claimed by plaintiff and denied by defendant, the basis of compensating the contractor was changed from a flat sum of $ 26,500 provided in the original contract to what is known as the "cost plus" method of compensation. By the terms of which modified contract plaintiff was to receive the amount necessarily expended in the erection of the building plus a sum equal to ten (10%) per cent thereof by way of compensation. This suit is to recover the balance claimed by plaintiff to be due him under the new contract.
Defendant's first point is that his instruction in the nature of a demurrer to the evidence should have been given. We think there is no merit in this contention. Although defendant and his superintendent denied that the new contract was entered into, plaintiff testified that he had a meeting with them on March 23, 1921, at the place where the building was in process of construction and that defendant and himself agreed upon the new contract as hereinbefore described. The conversation in which the new contract was made, was heard by four workmen while at their labor and although none of them heard the entire conversation, each heard material parts thereof corroborating plaintiff's testimony.
In this connection defendant insists that a writing was introduced in evidence showing that the original contract was never changed. This contention grows out of the fact that shortly before the completion of the work defendant was complaining of the excessive cost of the building and plaintiff prepared for him a statement of the extra work done not covered by the original estimate. This statement was headed "Items of extra work" and the amount therein mentioned totaled the sum of $ 7411.05. Immediately following these figures appeared the words. "25% of same, $ 1852.76." This was added to the first sum mentioned making $ 9263.81 for extra work. On the face of this it would seem, as defendant contends, that plaintiff was making a charge of twenty-five per cent of the cost of the extra work for his services in doing that work. Of course, this would tend to show that the contract was never changed, that is, that he was to receive a flat sum for the work provided for in the plans and specifications and was charging twenty-five per cent for his services in connection with the extra work. Defendant and his superintendent testified that that was what was meant and that they agreed to this twenty-five per cent charge. Of course, if this were true, the charge of twenty-five percent is inconsistent with the claim that the new contract was for ten per cent of the whole work.
It is also claimed that plaintiff's testimony in explanation of the matter was inconsistent. He first testified that he did not write out this statement himself but that it was made by one Williams under his direction and that he delivered the same to defendant, but denied that at the time he delivered it "twenty-five per cent of same" was written upon it. Plaintiff placed Williams upon the stand to show that Powell, the superintendent, had told him after the alleged new contract was made that it had been changed to a "per centage basis." On the cross-examination of Williams it was brought out that the words "twenty-five per cent of same" were upon the statement at the time he handed it to plaintiff to take to defendant. Plaintiff was again put upon the stand and testified that he did not remember whether the words "twenty-five per cent of same" were on the statement at the time he delivered it; that he did not remember that it was; that he told Williams to add to the statement some small items that he paid for himself, such as gasoline and ice and various other expenses; (it seems that defendant paid the general bills as the work progressed), that he did not tell him to put this down as twenty-five per cent of the amount of the extra work; that the $ 1852.76 was to cover these small items. There was ample testimony tending to show that the new contract was entered into on March 23, 1921, and the conflict, if any, in plaintiff's testimony was for the jury. [Guthrel v. Slater, 153 Mo.App. 214; Bond v. Railroad, 110 Mo.App. 131.]
The testimony of the four witnesses above referred to corroborating plaintiff in his testimony that the conversation of March 23rd was had wherein the original contract was changed, was competent. [4 Wigmore on Evidence (2 Ed.), secs. 2099, 2100.] Each one of these witnesses stated as much of the conversation as he individually had heard. There is no question involved as to the identity of the conversation, the time it was had or the definiteness of the parts heard by each of these men. From their testimony we understand that they gave the substance of what they heard and not their conclusions.
We think, however, that the court erred in admitting, over the objection of defendant, testimony tending to show that Powell, the superintendent, stated at various times that the contract had been changed to one on a cost plus ten per cent basis, for the purpose of showing admissions against interest by defendant through his agent, These statements were made by Powell after March 23, 1921, the date of the new agreement, to workmen of plaintiff on the work and made in explanation by the superintendent of the reason he was ordering the workmen to make various changes in the plans for the construction of the building. However, on one occasion the statement of Powell was not made on the work but to a workman with whom he was taking lunch, in which conversation the superintendent referred to the fact that the sashes that were being set in the basement were costing "better than $ 12 a piece" for the reason that defendant was having the work done on a percentage basis.
The original contract, which was in writing, provided that the work should be completed "according to plans and specifications and to satisfy the owner, superintendent or building inspector;" that "the contractor shall carry on work as superintendent or owner may expressly direct." Plaintiff insisted that this made the superintendent defendant's agent for the purpose of changing the contract, that is, to change it from a flat price contract to a cost plus per cent basis, but we think not. The contract means that the work should be carried on under the plans and specifications as directed by the superintendent or the owner and to satisfy him or the owner. The contractor was to be paid a lump sum for constructing the building. He did not agree that the plans and specifications could be changed at the mere direction of the owner or the superintendent. In any event the superintendent had no authority to change the basis of payment.
The evidence shows that the day after the original contract was entered into it began to appear that it would be necessary to change the plans and specifications in a material manner. On March 23rd, a conversation was had between plaintiff, the superintendent and some others in reference to changing the floor construction so that it would cost twice as much as the character of construction provided for in the plans and specifications. Plaintiff testified that Powell then told him that he could not give him authority to go ahead under the proposed change without consulting the defendant, and it was the next day that defendant came out and the three discussed the matter as hereinbefore stated, resulting in not only a change in the plans and specifications but a change in the basis of pay.
Plaintiff testified that both defendant and Powell then told him "to go ahead at ten per cent" which he agreed to but it is not clear as to whether defendant or Powell told this, but whatever Powell said was in the presence of the defendant. This testimony may give rise to an inference that whatever Powell said at this meeting was said as the agent of the defendant. In other words, that if Powell made the new arrangement...
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