Tuttle v. Chostner

• Decision Date: 01 April 1924
• Docket Number: No. 18491.,18491.
• Citation: 260 S.W. 819
• Parties: TUTTLE, et al v. CHOSTNER et al
• Court: Missouri Court of Appeals

260 S.W. 819

TUTTLE, et al v. CHOSTNER et al

No. 18491.

St. Louis Court of Appeals, Missouri.

April 1, 1924.

Appeal from Cape Girardeau Court of Common Pleas; John A. Snider, Judge.

"Not to be officially published."

Action by Sam H. Tuttle and Charles Tuttle, doing business as the Tuttle Masonry Construction Company, against N. C. Chostner and Alma Chostner, his wife, and Herbert Boren and others, doing business under the name of Boren Brothers. Judgment for plaintiffs, and defendants appeal. Affirmed.

Hardesty & Limbaugh, of Cape Girardeau, for appellants.

Spradling & Dalton, of Cape Girardeau, for respondents.

ALLEN, P. J.

This is an action by the plaintiffs, copartners, against the defendants, Herbert Boren, Amos Boren, and A. R. Boren, as members of the firm of Boren Bros., the alleged general contractors for the erection of a brick dwelling house upon a lot of ground in the city of Cape Girardeau, and N. F. Chostner and Alma Chostner, his wife, the owners of said real property, by which it is sought to obtain a general judgment against the defendant contractors and a mechanic's lien against the said property.

It is unnecessary to set out the petition at length. It alleges that the defendant contractors are indebted to plaintiffs in the sum of $204.72, for materials furnished and work and labor done upon said building by plaintiffs, at the request of said defendants during the period beginning August 2, 1922, and eliding October 30, 1922. The account pleaded is for work and material furnished in erecting the main walls of the building, the balustrade walls and the piers and pier caps of the porch, and the chimney, and for certain other brick furnished, and consists of the following items: Main walls, $352.80; porch piers, $26.90; balustrade walls, $21; chimney, $34.50; pointing and setting pier caps, $1.85; brick, $12. The account as thus set forth totals $449.05; but plaintiffs give credit for the payment of $244.33 by the defendant contractors to a brick company for brick obtained by plaintiffs, leaving an alleged balance of $204.72 due on the account, for which judgment is prayed against the defendant contractors with a lien against the property.

Defendant Herbert Boren filed an answer denying, but not under oath, that he was a member of the partnership. All of the remaining defendants filed a joint answer admitting that Chostner and wife are the owners of the real estate described in the petition; that defendants A. G. Boren (Amos Boren) and A. R. Boren were the original contractors for the erection of the building thereon, and that they entered into a contract with plaintiffs to do the brickwork required in the construction thereof; and denying generally the other allegations of the petition. This answer further sets up that the plaintiffs contracted with the defendants A. G. Boren and A. R. Boren to do the brickwork on said building in a workmanlike manner for $336; that thereafter said defendants entered into a further contract with plaintiffs to erect the porch piers for $26.90, the balustrade walls for $21, and to build the chimney for $34.50—these being the amounts charged for those items in plaintiffs' account. And it is alleged that plaintiffs did not perform the work in accordance with the contract, in that they did not complete the walls of the building, and did not clean the same when finished as they were required to do under the terms of the contract; and that the defendants are entitled to the following credits on the account, viz.:

"Excess over contract price in charge for construction on main walls, $16; deduction for cleaning walls as aforesaid, $10; deduction for shortage on work on walls, $8."

These items totaling $34. This answer further alleges that the item of $12 in plaintiffs' account for brick is excessive; that on this item plaintiffs are entitled to but $3 for 250 bricks, used by the defendant contractors belonging to plaintiffs, at the price of $12 per thousand. And it is alleged that the defendant contractors agreed to pay and did pay to the Black Diamond Coal Company a bill of $10.10 for sand used in said work, and are charged by the Southeast Lumber Company with $13.50 for materials furnished therefor, and are therefore entitled to a further credit of $23.60; and that plaintiffs took a hammer, valued at $1.50, and a yard of sand valued at $1.60, belonging to said defendants, by reason whereof defendants are entitled to a further credit of $3.10. And defendants pray that they may receive credit on the account for the total sum of all such items, to wit, $63.70.

Coupled with this answer is a counterclaim filed by the defendants A. R. Boren and A. G. Boren, wherein they allege that plaintiffs agreed to do the brickwork on said building in a good and workmanlike manner, without injury to the building, but that plaintiffs carelessly and negligently went upon the roof thereof and drove nails therein which left holes in the roof, causing it to leak, resulting in damage to the interior of the building, which said defendants are required to remedy, and that the cost of such repair work will amount to $150. And it is further alleged, by way of counterclaim that the defendant contractors employed plaintiffs as subcontractors to do other brick construction work for them including the brickwork on a house belonging to one Mollie Schuchert; and that said defendants are entitled to a credit of $12 for a "crook made in the brick wall of said house and nail holes left open in the walls thereof" and a credit of $6 for the cleaning of the walls and a further credit of $1 for a ladder belonging to them which was taken from said house by plaintiffs. And defendants A. G. Boren and A. R. Boren pray judgment on their counterclaim for $169.

The trial before the court and a jury, resulted in a verdict and judgment in favor of plaintiffs and against the defendants Herbert Boren, Amos Boren, and A. R. Boren in the sum of $170.66, with a lien therefor against the property. From this judgment defendants have appealed.

It is unnecessary to here relate at length the testimony touching the items of plaintiffs' account. But two items of the account were in controversy at the trial, viz., the first item, of $352.80, for the erection of the main walls, and the last item, of $12, for brick, which defendants contend are excessive. As to the first item, the testimony for plaintiffs is to the effect that the agreement was that plaintiffs were to receive $24 per thousand for the brick, laid in the wall, and that, at that price, the brickwork done amounted to more than the amount of this item. For the defense, the testimony of Amos Boren is that plaintiff Sam H. Tuttle, in figuring on the work, said he would do it for $24 per thousand and that it would amount to $336. Later the witness said: "He said he would build it for $336."

As to the last item of the account, the testimony for plaintiffs shows facts from which it may perhaps be inferred that more than 1,000 of their brick were used; but the positive testimony for defendants is that but 250 brick were used.

Plaintiff Sam H. Tuttle, in testifying, admitted that the bill of $10.10, for sand, had been paid by the defendant contractors and should be deducted from plaintiffs' claim, but said that the bill was not paid until after the lien had been filed. And the evidence for plaintiffs further shows that both the Black Diamond Coal Company and the Southeast Missouri Lumber Company had in writing waived their liens against the property and authorized plaintiffs to include in their lien account the amounts due such companies.

Touching the items pleaded in the answer as "credits" due defendants on plaintiffs' account, there is much conflict in the testimony. We have above referred to the testimony as to the first item. The testimony for defendants shows that there was no express agreement by plaintiffs to clean the walls; though there is testimony that such is the common practice if the walls are soiled by mortar in the doing of the work; this, however, is denied by plaintiffs' witnesses. As to the item of $8 for "shortage on work on walls," the evidence for defendants is that the main...