Wright v. Ickenroth
| Decision Date | 16 November 1948 |
| Docket Number | 27499 |
| Parties | WRIGHT v. ICKENROTH |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
A. E L. Gardner, of Clayton, for appellant.
Harold C. Ackert, of St. Louis, for respondent.
This is an action for damages arising out of the breach of a contract. The trial resulted in a verdict and judgment for the plaintiff. After a motion for a new trial was filed and overruled, defendant appealed.
Plaintiff was a building contractor and the defendant, who was engaged in the welding business, desired to have plaintiff erect for him a steel building of standard dimensions known as a 'Quonset Forty'. The two parties entered into the following contract:
The building mentioned is made of rolled, cut and shaped sheets of steel, which are fastened to supports to form a structure which is rounded on top. The sheets are delivered in bundles with the necessary bolts, braces, etc. in proper shape and in sufficient quantity to assemble the building. On the same day that the contract was signed by defendant, plaintiff placed an order for the building with the Seidel Lumber Company and made application for a federal permit for the construction, which was at that time necessary.
About a week after the contract was signed, plaintiff phoned the defendant and asked if he had received the permit. Plaintiff was informed that it had been received, but was requested to delay starting the work and to write the defendant a letter setting forth in more detail the specifications of the building. He complied with this request but did not hear from the defendant and upon again phoning him was informed that another party had been employed to do the work. Plaintiff then notified the Seidel Lumber Company that he had no need for the building he had ordered and they kept the material and allowed him a credit of $ 3,540.62 against the price of $ 4,774.72.
Plaintiff testified that his estimated profit under the contract would have been $ 1,396 and it was for this amount and the $ 1,234.10 claimed by the Seidel Lumber Company that he brought this suit.
The testimony on behalf of the defendant was to the effect that the contractor who built the structure at approximately the same contract price lost money on the work.
The jury returned a verdict for the plaintiff in the sum of $ 1,396, which is the exact amount of the profits that the plaintiff estimated that he would have made.
Appellant sets forth in his brief numerous assignments of error but many of the points urged are not to be found in his motion for a new trial and are raised here for the first time. We are limited in our review on appeal by Section 140(a), Laws of Missouri, 1943, p. 395, Mo.R.S.A. § 847.140(a), and cannot by virtue of this section pass upon matters that have not 'been presented to or expressly decided by the trial court.' There are certain exceptions contained in the statute but none of them are applicable to the points presented for consideration. Supreme Court rule 3.23 covers this section and is interpretative of it. Noble v. Missouri Insurance Co., Mo.App., 204 S.W.2d 446. Having in mind this limitation, it appears there are but three assignments of error open for consideration, one of which goes to the admissibility of two exhibits (B and C), which were received in evidence.
The plaintiff testified at length regarding placing the order for the Quonset hut with Seidel Lumber Company and asserted that upon his refusal to accept it he was credited with the cost of the material and charged with the difference between that and the agreed price. No objection was made to this testimony but upon the offer of the exhibits, a credit memorandum and a charge slip sent him by the seller, defendant objected on the grounds that they were 'merely hearsay' and 'not proper evidence against defendant'. These were offered in support of the oral testimony and though at times such evidence, not admissible in itself, may be used in corroboration (Adams v. Moberg, 356 Mo. 1175, 205 S.W.2d 553), the general rule as to its admissibility requires proof that the memorandums were made in the usual course of business. Nall v. Brennan, 324 Mo. 565, 23 S.W.2d 1053; Walton v. A.B.C. Fireproof Warehouse Co., 235 Mo.App. 939, 151 S.W.2d 494. Since defendant's objection was in part too general and in part specifically upon an incorrect ground it was not sufficient to direct the attention of the trial court to this rule and the admission of exhibits cannot therefore be held erroneous. Galloway v. Galloway, Mo.Sup., 169 S.W.2d 883; Carroll v. Missouri Power & Light Co., 231 Mo.App. 265, 96 S.W.2d 1074; Hill v. Johnson, Mo.App., 178 S.W.2d 801.
Defendant asserts that the court erred in reading to the jury instruction No. 3, which is as follows:
'The Jury are instructed that if your verdict be for the plaintiff, you will assess his damages at such sum as will represent the difference between the contract price of $ 8,096.00 and the amount it would have cost the plaintiff to erect said building and do the work required by said contract and for loss, if any, sustained by the plaintiff in making reasonable expenditures in preparation to erect said building, not, however, to exceed the amount claimed in plaintiff's petition.'
Defendant maintains (1) that the instruction is erroneous on the...
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