Veterans Linoleum & Rug, Inc. v. Tureen

• Decision Date: 17 September 1968
• Docket Number: No. 32949,32949
• Citation: 432 S.W.2d 372
• Court: Missouri Court of Appeals
• Parties: VETERANS LINOLEUM & RUG, INC., Plaintiff-Respondent, v. Bernard H. TUREEN, Defendant-Appellant.

Page 372

432 S.W.2d 372

VETERANS LINOLEUM & RUG, INC., Plaintiff-Respondent, v. Bernard H. TUREEN, Defendant-Appellant.

No. 32949.

St. Louis Court of Appeals, Missouri.

Sept. 17, 1968.

Blumenfeld, Kalishman, Marx & Tureen, Phillip J. Paster, St. Louis, for appellant.

Slonim & Ross, Richard L. Ross, Clayton, for respondent.

TOWNSEND, Commissioner.

From a nine-man verdict for $4,127.50 in favor of plaintiff and judgment thereon defendant prosecutes this appeal.

Plaintiff declared on 'a certain written contract . . . to sell, deliver and install linoleum to the defendant at an agreed price of Thirty-Three cents (33cents) per square foot' and prayed judgment for $4744 plus interest. At the trial plaintiff introduced the following document signed by the parties hereto: 'Purchaser Broadview Hotel. No. and Street 5th St. & Broadway. City and State East St. Louis, Ill. Veterans Linoleum & Rug, Inc., the Contractor, agrees to furnish all materials and labor necessary for installation of the improvements described herein according to the following specifications on/in building located at No. . . . Street . . . City . . . For supplying & laying 1/8 Vinyl agatine tiles sec. on third floor designated by Mr. Turine (sic), also hallways where designated at the above Hotel. Material used & labor at 33cents per sq. ft. To be paid at completion of job. fixing of floors to be done by Hotel management * * *. Contractor will do all said work in a good and workmanlike manner and in strict accordance with the ordinances, rules and requirements of the City, Town, or Village, wherein the above mentioned property is located.' (We italicize the hand-written portions of the above document). At the trial only two witnesses testified--Mr. Rothman, president of the plaintiff, and Mr. Tureen, the defendant.

The petition alleged, inter alia: '(3) In accordance with said contract, the plaintiff sold and delivered Sixteen Thousand Eight Hundred (16,800) square feet of linoleum to the defendant' and '(5) The total contract price, as agreed by the parties herein, was Five Thousand Five Hundred Forty-Four Dollars ($5,544.00) * * *.'

We review the evidence from a standpoint favorable to plaintiff, give it the benefit of any part of the defendant's evidence favorable to it and not contradicted by its own testimony or not contrary to its fundamental recovery theory, give it the benefit of the reasonable inferences from all the evidence, and disregard all of defendant's evidence unfavorable to plaintiff. Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311; Sperry v. Tracy Dodge-Plymouth Co., Mo., 344 S.W.2d 108; Brantley v. Couch, Mo.App., 383 S.W.2d 307.

Following such established principles of review, we find that the jury might well have found the following facts: Defendant instructed plaintiff to lay tile in all the rooms and corridors of the third floor. Plaintiff's mechanic measured such areas and he specified to plaintiff that approximately 300 cases of tile would be needed 'to start of with'. In anticipation of performance of the tile-laying job plaintiff caused 300 cases of tile, amounting to 16,800 square feet, together with appropriate amounts of paste, to be delivered to the building in question; there the tile was stored in a basement room to which defendant's maintenance man had the key. Thereafter plaintiff's workmen laid the tile in eleven rooms, requiring the use of forty cases. At this stage defendant ordered the tile-laying stopped and thereafter gave no explanation of why he wanted the work stopped. Defendant did not express any dissatisfaction with the floors. Subsequently Mr. Rothman and the defendant met for the purpose of considering the amount which was owed to plaintiff for tile actually installed; a measurement of such installed areas was made by a representative of defendant who reported that the amount due therefor at the contract rate was $910.30, a sum thereupon paid by defendant by check. Defendant then told Mr. Rothman that he could pick up the balance of his tile and paste. Over the next two months plaintiff sent its employees to the hotel on numerous occasions--' over twenty times'--to pick up the tile which it had not installed and upon each occasion its efforts were fruitless owing to the absence of defendants maintenance man who had the key to the area where the tile was stored. Nor was defendant present upon such occasions. No portion of the tile which was not installed by plaintiff has ever been returned to plaintiff. Mr. Rothman made an inspection of certain floors of the hotel and there found that at least fifteen rooms other than those installed by plaintiff's workmen had been floored with the tile which plaintiff had stored on the premises; Mr. Rothman identified such tile by the design which was produced only by plaintiff's supplier. When Mr. Rothman and defendant negotiated the matter of installing the tile, Mr. Rothman told defendant that plaintiff's supply of tile (seven carloads) had been acquired from B. F. Goodrich Company as a 'close-out' of the latter's inventory and that it was second quality. Plaintiff's labor cost of laying tile was five cents per square foot.

Under questioning by plaintiff's counsel Mr. Rothman developed the method by which he arrived at the amount for which he said plaintiff was suing, namely, $3892.80. Assuming that only forty cases of tile had been laid by plaintiff, Mr. Rothman charged defendant with the balance of the tile which had been stored in the hotel basement, i.e., 260 cases. Each case contained fifty-six square feet and therefore he charged defendant with 14,560 square feet. This quantity multiplied by 33 minus 5 cents, or 28cents, yields a product of $4076.80. Mr. Rothman had previously computed the amount owed plaintiff for tile actually installed by plaintiff, i.e., forty cases, at $726. ¹ Adding the latter sum to $4076.80, he arrived at a total of $4802.80; giving defendant credit for $910.30 admittedly paid, Mr. Rothman asserts that the principal sum owing is $3892.50, no part of which has been paid. The net result of plaintiff's computation is to charge defendant for the installation of forty cases at the contract installation rate or 33cents per square foot and to charge defendant for 260 cases at the contract installation rate reduced by the amount of the labor cost saved to plaintiff in not having to do the actual installation of the 260 cases.

The indefiniteness and uncertainty of the agreement as signed by the parties was cured when defendant designated the entire third floor including hallways as the area to be tiled. Thereby the defendant gave substance to his promise to pay and removed any doubt of whether his promise in the written agreement constituted sufficient consideration for the promise of the plaintiff. At that moment the agreement of the parties consisted of two simple promises, that of the plaintiff to tile the areas designated by defendant and that of the defendant to pay at the named rate for tiling the designated areas.

In his first two points appellant maintains that the trial court erred in overruling appellant's motion for a directed verdict at the close of plaintiff's evidence. However after the overruling of the motion appellant proceeded to introduce his own evidence and under such circumstances it has been repeatedly held that the appellant thereby waives any complaint that the trial court erred in that respect. Appelhans v. Goldman, Mo., 349 S.W.2d 204; Keithley v. St. Louis Public Service Co., Mo.App., 379 S.W.2d 149.

At the close of all evidence the defendant moved for a directed verdict on the ground that the contract shown in evidence was in complete variance from the contract pleaded. The motion was denied; defendant assigns such refusal as error in his motion for new trial. While thus preserving the point for review, defendant fails to carry the point forward into his brief. Thus there was a failure to comply with Rule 83.05, V.A.M.R. and this assignment is not before us. In this situation we must consider the case on the basis of the contract actually proven at the trial. We proceed with defendant's assignments of error absent the issue of variance.

Appellant assigns as error the giving of plaintiff's verdict-directing instruction which hypothesized

'First, plaintiff contracted with defendant for the supplying and laying of the tile mentioned in evidence,

Second, plaintiff delivered the tile mentioned in evidence and laid part thereof,

Third, defendant stopped plaintiff from laying the remainder of the tile Fourth, defendant made only partial payment of the price mentioned in evidence and failed to pay the balance due.'

This complaint relates to so many aspects of the case that it is necessary to proceed with an analysis of the case as exposed by the evidence recited above.

In many respects, both in its petition and otherwise, the plaintiff treats the agreement with defendant-appellant as a contract for the sale of goods--plus of course the commitment to lay tile. The contract placed in evidence was not a contract for the sale of goods; it was at most a contract for the improvement of real estate. The conduct of the parties negatived any idea that they entered into a contract of sale. The contract did not require plaintiff to store tile on defendant's premises and such storage under the circumstances shown is properly to be regarded as mere preparation by plaintiff to perform its promise, viz., to install tile. When plaintiff's tile was hauled to defendant's premises it was not tendered to defendant as a performance under the contract; defendant did nothing to indicate that he accepted that tile as such performance or that from that moment forward he regarded himself as the owner. Title to the tile remained in plaintiff. Nothing said or done limited plaintiff, in performing the agreement, to the use of the very tile which had been so stored. Plaintiff's duty under the contract...