Wentzel v. Lake Lotawana Dev. Co.

• Decision Date: 29 February 1932
• Docket Number: No. 17401.,17401.
• Citation: 48 S.W.2d 185
• Parties: GEORGE T. WENTZEL, RESPONDENT, v. LAKE LOTAWANA DEVELOPMENT COMPANY, INC., ET AL., DEFENDANTS; MAUDE THOMPSON, EXECUTRIX OF THE ESTATE OF MILTON THOMPSON, DECEASED, APPELLANT.
• Court: Missouri Court of Appeals

48 S.W.2d 185

GEORGE T. WENTZEL, RESPONDENT, v. LAKE LOTAWANA DEVELOPMENT COMPANY, INC., ET AL., DEFENDANTS; MAUDE THOMPSON, EXECUTRIX OF THE ESTATE OF MILTON THOMPSON, DECEASED, APPELLANT.

No. 17401.

Kansas City Court of Appeals. Missouri.

February 29, 1932.

Appeal from the Circuit Court of Jackson County. — Hon. A. Stanford Lyon, Judge.

AFFIRMED.

Paul C. Sprinkle and Ingraham D. Hook for respondent.

Burns & White for appellant.

ARNOLD, J.

This is a suit in damages, growing out of the relations of the parties in the clearing of a site for Lake Lotawana, a pleasure resort in eastern Jackson County. As originally brought, Lake Lotawana Development Company, a corporation, and Milton Thompson, were defendants. Before the trial, plaintiff dismissed as to the Lake Company and the cause proceeded against Milton Thompson, as sole defendant. After the appeal was lodged in this court and before it was set for hearing, Milton Thompson died and, on stipulation, the cause has been revived in the name of Maude Thompson, executrix of his estate, as appellant. For convenience, respondent will be referred to as plaintiff, Milton Thompson as the defendant, and Lake Lotawana Development Company, a corporation, as the Lake Company.

On February 3, 1928, plaintiff and the Lake Company entered into a contract in writing, by the terms of which plaintiff agreed to furnish labor and necessary tools and appliances to clear of trees and brush approximately 600 acres of the Lake Company's site, according to a survey and plat thereof. For this work, he was to receive the sum of $16,000, payable as follows: $3200, when the first 150 acres was cleared, and an additional $3200, as each subsequent 150 acres cleared; balance of $3200 to be paid by the Lake Company when the contract was completed to the satisfaction of the engineer in charge, and proof that all bills had been paid. The work was to begin within six days after the signing of the contract and to be completed within eight months. The contract also contained provisions as to the method of clearing, and disposition and ownership of fallen trees. Provision was made for an adjustment of amount to be paid, pro rated as the lake proved to be larger or smaller than the estimate of 600 acres. Plaintiff agreed to maintain liability insurance under the Workmen's Compensation Act, and gave a surety bond, guaranteeing his faithful performance of the contract. On February 4, 1928, plaintiff went to work, with a large force of men, clearing a strip about 200 feet wide, beginning at the proposed dam site and working around the proposed shore line. This was in accordance with a provision of the contract, and as stated therein, the purpose was to enable prospective customers for lodge sites to visualize the shore lines and extent of the lake. This work of clearing a 200-foot strip consisted of felling the trees, cutting off the larger limbs and burning the brush and tops. Most of the logs were cut into saw mill lengths. Cord wood and all merchantable timber was left on the ground. Having cleared this 200-foot strip around the lake, with the exception of small areas which plaintiff was asked by the engineer to leave, plaintiff's crew cut most of the timber adjacent to the dam site. Some trees were left standing, at the request of Mr. Matches, the general manager of the Lake Company, and of Mr. Sheley, its engineer. There was also a clump of trees left, for shade, at the site of a saw mill which had been erected to dispose of the saw logs. The lake site consisted of the basin of one larger creek and seven or eight tributary creeks, and trees were left standing in the bed of these streams, under a provision of the contract to the effect that such trees were to be felled last, so as not to interfere with the natural flow of the streams, and finally anchored in the creek beds, as propagating beds for fish, after the lake had formed.

As soon as he had cleared 150 acres of the lake bed, plaintiff began demanding money, under his contract. The company engineer made an estimate of the amount cleared, at the request of Mr. Matches, and reported more than the amount specified had been cleared; but no money was paid to plaintiff, because, as Mr. Matches said, he had no money with which to pay. Plaintiff continued to work without payment until March 3, 1928, at which time he had cleared approximately 300 acres, and claimed two payments of $3200, each. He quit on that day, withdrew his men and did no more work until March 22, 1928, relying upon a provision of the contract to the effect that in case of a breach of any of the payments or covenants of the contract "the contractor (plaintiff) may cease all work until payment or settlement of account is made."

It is in evidence that when the contract was made there were several tracts of land, owned by other parties, included within the Lake Company's plan, which had not been acquired by the company. This fact was known to the Lake Company, but not to plaintiff. When plaintiff's men reached these tracts in the process of clearing, they were stopped by the owners or tenants and admittance to the land was refused. This delayed plaintiff in clearing the 200-foot strip around the shore line of the lake, and caused him to shift his force to other points. It is also in evidence, with reference to these tracts, that Mr. Thompson, the defendant, was negotiating with the owners for them, and did finally acquire warranty deeds to the properties, taking title in himself and the appellant, his wife. At this time (March, 1928), the Lake Company had no funds and was looking to Mr. Thompson to advance money for payment to plaintiff on his contract, and it is in evidence that Mr. Thompson said he would advance no money until the Bowman, McGrath and McCandless controversies were cleared up. About March 20, 1928, Mr. Thompson secured the Bowman deed, advanced $2500, to the Lake Company which was paid plaintiff on his contract, and on March 22, plaintiff again went to work and continued until about June 14, 1928. At that time, he had substantially completed the operation of felling trees and clearing the land of brush. Up to that time, he had been paid the sum of $8400, as follows: March 22, 1928, $2500; April 2, 1928, $700. This $3200 was the first payment due him on the clearing of approximately 150 acres of lake site. On April 14, he received $1,000; April 21, $1,000; April 27, $200; May 1, $1,000 which $3200 was the second payment due him for clearing another 150 acres. On May 10, he received $500, May 14, $500, and June 2, $1,000, a total of $2000, on the third payment of $3,200, due him, according to the evidence. All of this money was advanced by Mr. Thompson, at the request of Mr. Matches, general manager of the Lake Company, because the company had no money with which to pay. Plaintiff did no more work under the contract after about June 14, 1928. Sub-contractors who had contracted with plaintiff for the sawing and removal of lumber continued to work through the summer. Defendant Thompson went to Europe on a vacation about July 1, 1928, and nothing more was done until after his return in the fall.

On October 4, 1928, the Lake Company wrote a letter to the Maryland Casualty Company, on plaintiff's bond, stating plaintiff had not completed his work according to contract, declaring the contract forfeited and calling upon the bonding company for all damages sustained thereby. This letter was returned to the Kansas City office of the bonding company and was communicated to plaintiff. Shortly thereafter, defendant caused a notice to be inserted in a Kansas City daily paper, reading, in part, as follows:

                "Highland Farms, Lee's Summit, Missouri
                "Milton Thompson, Owner
                

"I have been interested financially in the Lake Lotawana Development since its very inception, but the press of other business has prevented my taking an active executive part in the project.

"Now, however, my holdings in the Development have been materially increased, and I am free to assume a direct and personal interest in its management.

"At the outset I wish to guarantee personally that the lake will be completed. The dam will be built, the roads and entrances constructed according to the original plans.

"Anyone purchasing property from the Lake Lotawana Development Company can do so with the full assurance that the lake will be completed faithfully and promptly.

"My desire to see the lake completed as early as possible is not entirely selfish... .

                    "Respectfully
                                               "Milton Thompson."
                

Following receipt of the notification of cancellation of the contract by the Casualty Company, the latter wrote the Lake Company on October 10, 1928, that it would investigate, and directed that any balance due plaintiff in the hands of the Lake Company be withheld for its further orders.

Mr. Miller, Kansas City representative of the Maryland Casualty Company, and its local counsel, Mr. Spencer Harris, upon receipt of this correspondence, went to see Mr. Thompson who went over the lake site with them, and the matter of plaintiff's work was discussed. As a result of this conference, and the publication by defendant of the notice from which we have quoted, within a few days Mr. Miller, Mr. Harris, plaintiff Wentzel and his attorney, Mr. George H. English, drove out to the home of defendant and discussed the whole matter. Mr. Wentzel was claiming he had not breached the contract and that Thompson had; Thompson claiming he had not breached the contract and that Wentzel had. After going over the lake site, they all returned to Mr. Thompson's house, at which time and place it is alleged a new but oral contract was entered into between plaintiff and defendant.

Plaintiff's evidence is that he or his counsel stated plaintiff would not deal further with the Lake Company because it was not financially responsible; that plaintiff could not afford to proceed and asked defendant for...