Woodley v. Esslinger
| Decision Date | 05 October 1970 |
| Docket Number | No. 25373,25373 |
| Citation | 458 S.W.2d 869 |
| Parties | Logan A. WOODLEY, Jr., d/b/a Woodley Boiler and Welding Co., Plaintiff-Respondent, v. Jeanette ESSLINGER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Philip C. Ehli, Kansas City, for defendant-appellant.
James T. Seigfreid, James M. Beck, Dietrich, Davis, Burrekk, Discus & Rowlands, Kansas City, for plaintiff-respondent.
FLOYD L. SPERRY, Special Commissioner.
This lawsuit was begun in magistrate court.
Plaintiff is a licensed boiler maker and is engaged in operation of a business known as Woodley Boiler & Welding Co., in Kansas City, Mo. Defendant has two apartment houses in Kansas City, each having six apartments therein. One of these houses was located at 3736--38 Wabash.
Plaintiff alleged in his petition that, in January, 1968, at the request of defendant, he furnished certain labor and materials for the repair of the furnace in the above apartment house. He further alleged that, although demand had been made for payment, payment had not been made. He filed petition praying for judgment in the sum of $250.90 which, he alleged, was the reasonable value of labor and material furnished to defendant.
Defendant filed answer. In the first paragraph she denied all allegations of the petition and, in the second, she alleged that, in all work performed by plaintiff, he used 'improper material and exercised poor and improper workmanship'.
She also filed a counterclaim. She alleged that the apartment here involved contained six liveable units; that, during January, 1968, defendant requested plaintiff to make and perform certain repairs to the 'boiler furnace' situated therein; that plaintiff entered the premises and 'started to make the necessary repairs'; that plaintiff 'Carelessly and negligently incompletely performed the repairs; and that, as a proximate result of the negligent repair of the boiler, defendant suffered damages as herein set forth'. In paragraph four of her counterclaim she states as follows:
'That the defendant incurred additional expense from material and labor to correct defective repairs that the Plaintiff has made; that the Defendant lost the benefit of rents and profits from the reasonable rental value of such apartment units and that as a result of this defective repair the pipes froze causing extreme damage to all of the interior of the apartments all to her damage in the sum of Two Thousand ($2,000.00 Dollars'.
Judgment in the magistrate court was for plaintiff in the sum of $250.90. (No mention of defendant's counterclaim was made by the court).
Defendant appealed to circuit court where a trial was had without a jury. Both parties were present and both offered evidence. The court found for plaintiff on his petition and rendered judgment against defendant in the amount of $188.65. The court found the issues for plaintiff on defendant's counterclaim. No findings of fact were requested or made. Defendant appealed to this court.
Defendant contends that the circuit court obtained no jurisdiction of the case on appeal because the magistrate court made no mention or disposition of her counterclaim; that the circuit court should have remanded the cause to the magistrate court for disposition of all of the issues presented. She also urges that the circuit court should have remanded the cause to the magistrate court because, as she contends, she was not in default in magistrate court but had pleaded and was present at the trial, and that plaintiff had offered no evidence in that court.
We rule these contentions adversely to defendant. Section 512.270, R.S.Mo. 1959, V.A.M.S., provides as follows:
.
The effect of defendant's appeal from the judgment of the magistrate court was to cause a de novo trial in circuit court. Aubuchon v. Ayers, Mo.App., 400 S.W.2d 472, 473, 476. The circuit court would consider the cause as though it had been originally filed in that court.
In the trial below, plaintiff was his own sole witness. He identified his exhibits, one through six, as being work sheets made up by various of his employees who worked on this furnace. These exhibits are small note size sheets of plain rough paper bearing no information except that which appears thereon in lead pencil writing. Plaintiff stated that he was never present when any of his workmen were working on this job but that he had visited the job site on three different occasions.
He stated that, when a call comes in requesting services such as his business renders, one or more of his employees answers the call and, at the close of each working day, each of them fills out a work sheet showing name, date and time worked, and materials used. He stated that, from such work sheets, he made up his business records, showing the charges made on each job performed.
He testified and interpreted Exhibit one. It bears the name 'Hugh' which, plaintiff said, was his workman Combow. He said it showed: 'Jan. 26th, 3738 Wabash, roll all tubes, use five 3 inch 48 5/8 tube, 6 . He interpreted this exhibit to mean that his employee, Combow, went to defendant's premises on January 26th, and worked six hours; that he rolled al the tubes and replaced five tubes with three inch tubes 45 5/8 inches long.
Plaintiff also interpreted and explained the remaining group of six exhibits. Each of them contained information regarding the name of the workman, the date and hours that he worked on this job, what he did and the kind and quantity of materials used.
Plaintiff also identified and gave testimony regarding his Exhibit 7, which is entitled 'work order'. The printed form contains hand writing in ink which, plaintiff stated, indicated that six three inch tubes, 48 5/8 inches long were used. The cost charge for this material, as shown on the Exhibit was $34.50, seventeen hours of labor at $8.00 per hour, $136.00; oxygen, $1.00; total $176.50. In another portion of the Exhibit appears a charge of $12.15 for installing a thermocouple in boiler. The 'total' charge shown was $188.65.
Plaintiff stated that this exhibit was prepared in his office from exhibits one through six heretofore mentioned and that all such exhibits are a part of his business records, regularly kept in his office. He stated that, when he visited defendant's apartment house there were some broken windows in the building.
Defendant testified to the effect that she owned and operated two apartment houses, number one located at 3736--38 and number two at 4042, Wabash; that in January, 1968, there was trouble with the number one furnace; that there was water in it; that she called plaintiff's place of business and requested that plaintiff repair it; that plaintiff's workmen did some work on it, but that she continued to have the same trouble with it; that the boiler was still leaking after the work was completed; that she again called plaintiff and told him that the boiler was still leaking and requested that he fix it; that plaintiff only made two trips, one on January 26th, and the other on January 30th; that she called him after January 30th and told him that the boiler was still leaking and in the same condition that it was in when she first called; that there as no heat in the house and that the boiler as full of water; that he said that she had not paid the bill; that she told him that he had not repaired the boiler; that she would pay him when he had done so; that plaintiff said he did not know if the boiler could ever be repaired; that she would probably have to buy a new boiler.
She stated that the boiler-furnace was the only source of heat available for the apartment; that she had employed two men who, regularly, made repairs on her apartments; that they replaced broken windows and made other repairs; that in January, 1968, all apartments in the building were occupied but; because of the lack of heat,...
To continue reading
Request your trial
-
Rolla Lumber Co. v. Evans, 9106
...79, 82(5); Adams v. Smith, Mo.App., 307 S.W.2d 525, 527(1); Williams v. Cass, Mo.App., 372 S.W.2d 156, 161(10, 11); Woodley v. Esslinger, Mo.App., 458 S.W.2d 869, 873. See Otte v. McAuliffe, Mo.App., 441 S.W.2d 733, 736(2). Hence, failure to prove the reasonable value of services rendered o......
-
Curators of University of Missouri ex rel. Shell-Con, Inc. v. Nebraska Prestressed Concrete Co., SHELL-CO
...482 (Mo.1940); Bradley Heating Co. v. Thomas M. Sayman Realty & Investment Co., 201 S.W. 864 (Mo.1918); Page 908 Woodley v. Esslinger, 458 S.W.2d 869 (Mo.App.1970); Isaac v. Koening, 447 S.W.2d 818 (Mo.App.1969). When the contactor voluntarily ceases work or, in the construction trade verna......