Webb-Kunze Construction Company v. Gilsonite Construction Co.

• Decision Date: 26 March 1920
• Citation: 220 S.W. 857,281 Mo. 629
• Parties: WEBB-KUNZE CONSTRUCTION COMPANY, Appellant, v. GILSONITE CONSTRUCTION COMPANY and ANHEUSER-BUSCH BREWING ASSOCIATION
• Court: Missouri Supreme Court

220 S.W. 857

281 Mo. 629

WEBB-KUNZE CONSTRUCTION COMPANY, Appellant, v. GILSONITE CONSTRUCTION COMPANY and ANHEUSER-BUSCH BREWING ASSOCIATION

Supreme Court of Missouri, Second Division

March 26, 1920

Appeal from St. Louis City Circuit Court. -- Hon. Thomas C Hennings, Judge.

Reversed and remanded (with directions).

Kinealy & Kinealy for appellant.

(1) There can be no question of the right of the Legislature to enact Sec. 11971, R. S. 1909, regulating weights and measurements. Ex parte House v. Mayes, 227 Mo. 617. (2) No custom or usuage can nullify the statute. Ex parte House v. Mayes, 227 Mo. 617; Green v Moffett, 22 Mo. 529. (3) Section 11971 must be read into the contract here in question the same as if set out therein at length. Zellers v. Surety, 210 Mo. 86; Henry Co. v. Salmon, 201 Mo. 136; Isenhour v. Barton Co., 190 Mo. 163; State ex rel. v. Rubber Mfg Co., 149 Mo. 181; Reed v. Painter, 129 Mo. 674; State to use v. Berning, 74 Mo. 87. (4) Estoppel as a defense must be pleaded. McClure v. Bank, 263 Mo. 128; Turner v. Edmonston, 210 Mo. 411; Keeney v. McVoy, 206 Mo. 42. (5) To constitute an estoppel by conduct, the other party must have changed his position to his detriment or in some other manner suffered injury. First Natl. Bank v. Ragsdale, 171 Mo. 168; De Berry v. Wheeler, 128 Mo. 84; Johnson-Brinkman Co. v. Railroad, 126 Mo. 344; Bank v. Frame, 112 Mo. 502. (6) Moreover, there can be no estoppel where both parties have the same knowledge or means of knowledge. De Lashmutt v. Teetor, 261 Mo. 412; Harrison v. McReynolds, 183 Mo. 533; Spence v. Renfro, 179 Mo. 417; Austin v. Loring, 63 Mo. 19; Bales v. Perry, 51 Mo. 449. (7) Where a contract is unambiguous the courts will enforce it regardless of any contention that the parties have by their acts given it a construction different from what it is as it is written. Meissner v. Ry. Equipment Co., 211 Mo. 112; Wetmore v. Crouch, 150 Mo. 671; Produce Co. v. Olsen, 188 Mo.App. 181; Laughlin v. Joplin, 161 Mo.App. 161; Bader v. Mill & Lumber Co., 134 Mo.App. 135.

Nagel & Kirby for respondents.

(1) The statute on which alone appellant bases its claim and contention for double measurement, does not apply to the facts in the case at bar. R. S. 1909, sec. 11971. (2) The contract here does expressly provide the method in which measurements shall be made, and also the basis upon which estimates shall be made to determine the amounts of compensation for the various kinds of work. (3) Even if the contract were ambiguous on that point, the parties have by their conduct interpreted it contrary to appellant's contentions. Meissner v. Ry. Equipment Co., 211 Mo. 112; Knisely v. Leathe, 178 S.W. 458.

WHITE, C. Railey and Mozley, CC., concur.

OPINION

WHITE, C. --

The defendant Gilsonite Construction Company had a contract with the Anheuser-Busch Brewing Association to erect a large building on Block 884 in the City of St. Louis. The Gilsonite Construction Company thereupon made a contract with the plaintiff, Webb-Kunze Construction Company, to do all the excavating for the building. After the excavation was finished satisfactorily to all parties, the plaintiff and the defendant Gilsonite Construction Company disagreed as to the method of measuring the work done in making the excavation. Thereupon the plaintiff filed its mechanic's lien and sued the original contractor, Gilsonite Construction Company, and the owner, the Anheuser-Busch Brewing Association. A judgment was rendered in favor of the plaintiff, enforcing its lien in the sum of $ 2,975.64, and interest. This was in accordance with the defendant's theory of the way the work should be measured. The plaintiff claimed that the judgment should be for the full amount sued for, $ 19,470.65, in accordance with the plaintiff's method of measurement. The plaintiff then appealed from the judgment.

The only dispute between the parties is as to the method of measuring the work done by the plaintiff. It is not disputed by respondent that if the method which plaintiff employed was correct it is entitled to judgment for the amount sued for, $ 19,470.65.

I. The difference arises in the application of the statute, Section 11971, Revised Statutes 1909, to the measurement of trenches and pier holes, as follows:

"Sec. 11971. Whenever measurements of earthwork, stone masonry work, brickwork, stone-cutting work, plastering work or roofing work is in any case hereafter required to be made for any purpose, and no special agreement as to the measurements has been made by the parties, the same shall be made and the quantity thereof ascertained in the following manner and by the following rules: Earthwork -- Earth Excavation Shall be Measured by the Cubic Yard. To ascertain the number of cubic yards of excavation made, take the length and multiply the same by the width and by the average height; the result will give the number of cubic feet, which, divided by twenty-seven, will be the amount of cubic yards. For all trenches and pier holes, double measurements shall be allowed. When earth is left in a cellar to protect the adjoining banks or walls, the same may be charged double the amount when required to be removed."

If the pier holes and trenches excavated by the appellant are given double measurements, as provided in that section, then it is entitled to the full amount sued for. The respondents claimed, and the trial court held, that the plaintiff was not entitled to the double measurements, provided in the section because there was a "special agreement as to measurements" as mentioned in the section. That part of the agreement to which the respondent calls attention as to measurements is as follows:

"Article XXI. In consideration of the faithful performance of every provision of this contract, to the satisfaction of Gilsonite Construction Company and the architect, Gilsonite Construction Company will pay to the subcontractor for all of this work and materials in place, under this contract, complete and accepted, the sum of excavation for all trenches including bracing and shoring, $ 1.15 per cubic yard.

"Excavation north of present railroad tracks forty cents per cubic yard.

"Excavation for pier holes under outside walls and three lines of piers, running east and west from north end of building with necessary bracing and shoring, two dollars per cubic yard."

It will be observed that the statute has this requirement: "Earth excavation shall be measured by the cubic yard." It then proceeds to provide how a cubic yard shall be determined; the length, breadth and thickness in feet shall be multiplied together and divided by 27 for ordinary excavation; for trenches and pier holes double measurements shall be allowed. That is to say, there shall be twice as many cubic yards in the same number of cubic feet in the excavation of trenches and pier holes as there are in other excavations. Now that portion of the contract quoted above is not in contradiction of the statute. It only provides the price that shall be paid by the cubic yard; $ 1.15 a cubic yard for trenches and $ 2 a cubic yard for pier holes; 40c per cubic yard for other excavations. The "cubic yard" mentioned in the contract is controlled by the statute; it is a statutory cubic yard.

The statute necessarily applies to contracts for making earth excavations and must be read as a part of every contract of that character. [Isenhour v. Barton County, 190 Mo. 163, 173, 88 S.W. 759; Reed v. Painter, 129 Mo. 674, 680, 31 S.W. 919; Zellars v. Surety Co., 210 Mo. 86, 92, 108 S.W. 548.] The rates expressed in the contract must be considered in connection with the statute. There is not a word in that part of the contract indicating how the work shall be measured or what shall constitute a cubic yard. It relates only to the price to be paid after the measurement is made. The statute defines what is meant by a cubic yard when applied to trenches and pier holes, -- just half the volume of an ordinary cubic yard, and the statute would be without meaning altogether if a cubic yard, in the absence of a special agreement, were measured in any other way.

Appellant, however, invokes a statement in the specifications attached to the contract as indicating a special agreement as to measurements. The contract provides, after setting out the work to be done:

"The whole to be in accordance with the drawings and specifications for the work and in strict accordance with the plans and specifications, drawings and details furnished by Widman & Walsh, and Klipstein & Rathmann, architects, hereafter referred to as architects and engineers, and by the Gilsonite Construction Company. The said plans, specifications, drawings and details in their entirety shall be considered as a part of this contract."

Turning to the specifications which the respondent claims furnished a special agreement as to measurements we find this:

"Proposals for the foregoing work are to be based upon the cubic yard:

"(1) For the trenches for retaining walls.

"(2) For the main body of the excavation, including removing old retaining wall on east side of Broadway and all other old walls or rubbish and loose natural rock which may be encountered.

"Estimates are to be based upon the actual amount of material removed according to surveys taken from time to time, and upon completion of the work, by a competent engineer employed by the owner."

We notice that this provision starts with the proposition that "proposals for the foregoing work are to be based upon the cubic yard." So far, we are in strict accord with the statute; a cubic yard, up to this point, must necessarily be a statutory cubic yard. Then follows immediately "(1) for the trenches for retaining walls." That certainly would be a statutory cubic yard...