Yamnitz v. Polytech, Inc.

• Citation: 586 S.W.2d 76
• Decision Date: 21 August 1979
• Docket Number: Nos. 39564,39619,s. 39564
• Parties: Delmar H. YAMNITZ, Plaintiff-Appellant-Respondent, v. POLYTECH, INC., Defendant-Respondent-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 76

586 S.W.2d 76

Delmar H. YAMNITZ, Plaintiff-Appellant-Respondent, v. POLYTECH, INC., Defendant-Respondent-Appellant.

Nos. 39564, 39619.

Missouri Court of Appeals, Eastern District, Division Two.

Aug. 21, 1979.

Prudence L. Fink, Daniel M. Buescher, Union, for plaintiff-appellant-respondent.

Paul H. Schramm, M. Harvey Pines, Schramm, Pines & Marshall, Clayton, for defendant-respondent-appellant.

STEPHAN, Presiding Judge.

On October 1, 1973, plaintiff Delmar Yamnitz, d/b/a Yamnitz Construction Company, and defendant Polytech, Inc., ¹ entered into a written contract whereby plaintiff was to renovate defendant's fire-damaged plastics factory in Owensville, Missouri. The contract price was $87,500. Work had actually begun on September 27, 1973 and was completed by January 19, 1974. In addition to the construction required by the terms of the contract, plaintiff provided a number of "extras" at the direction of defendant's president, Terrence D. McGowan. We reverse and remand for a new trial.

The primary dispute between the parties centers around the concrete floor poured by plaintiff in a section of the factory designated "concrete area one." The contract specifications provided that the floor in that area was to be level to within one-eighth of an inch in ten feet, so as to allow air pallets to operate efficiently in the area. Plaintiff was fully aware of the reason for the requirement of the extremely smooth, level finish. As originally graded, however, the floor admittedly did not comply with the specifications. It contained several undulations and a pitch to facilitate drainage. Plaintiff proposed to tear out the floor and re-pour it, but on the two occasions on which he sent employees to the factory to begin that operation, they were denied admittance. After exploring several alternative solutions to the problem, defendant contracted the C. Sansone Concrete Contractors, Inc., to pour a two-inch concrete "cap" over the original floor. The work, for which Sansone was paid $10,360, produced a floor which satisfied defendant's requirements. ²

Upon receipt of plaintiff's final bill for $19,893.88 (which represented the final installment due under the contract plus $3,393.88 for extras), defendant tendered plaintiff a check in the amount of $3,594.17. Defendant contended that one item termed an extra by plaintiff was in fact called for by the contract; as further offsets, defendant listed, inter alia, the cost of repairing the floor in concrete area one and property damage and product loss caused by plaintiff's employees in the course of the construction in defendant's plant. The check bore a notation indicating that it constituted full and complete payment to plaintiff for labor and materials provided under the contract; the check was consequently not cashed by plaintiff.

On December 17, 1974, Yamnitz filed a two-count petition in the Gasconade County Circuit Court. Count I, alleging breach of contract, sought the imposition of a mechanic's lien for damages of $19,393.88 plus interest as the unpaid balance due under the contract and the amount owed for the extras. Count II sought the recovery in quantum meruit of $3,350 for the construction of a temporary wall and for 1191/4 yards of concrete which was furnished by plaintiff and used by Sansone in capping concrete area one. Defendant filed a counterclaim for $20,000, alleging non-compliance with the contract specifications in the pouring of the floor, in installation of the steel substructure and in construction of the roof; defendant also alleged that an underground storage tank had been damaged by plaintiff's employees. Defendant's motion to amend its pleadings, which was filed three weeks prior to trial and which alleged additional elements of damage, was denied. Plaintiff's amended reply, filed after the close of the evidence by leave of the court, alleged that he was prevented by defendant from performing his duties under the contract. The jury returned verdicts for plaintiff on both counts of his petition and against defendant on its counterclaim. By agreement of the parties, the issue of the mechanic's lien was submitted to the court, which dismissed that portion of the petition on the ground that it failed to state a claim by omitting the "ultimate facts showing the timely filing of the lien statement." Plaintiff has appealed the order dismissing his claim for a lien. Defendant has appealed the judgments for plaintiff on his petition ($19,383.88 plus interest on Count I and $2,380 plus interest on Count II) and the judgment against defendant on its counterclaim. The appeals have been consolidated.

We agree with defendant's contention that the use of plaintiff's verdict-directing instruction on Count I mandates reversal in this case. That instruction, not found in MAI, reads as follows:

"Your verdict must be for Plaintiff Delmar Yamnitz on Count I of his Petition if you believe,

First, that Plaintiff and Defendant entered into the construction contract mentioned in the evidence, and

Second, that Plaintiff substantially performed his part of the contract or was prevented from doing so by the actions of defendant or its agents, and

Third, that Defendant has failed or refused to pay the entire contract price to Plaintiff, and

Fourth, that Plaintiff was thereby damaged."

The use of this instruction was erroneous in this case because it submitted the issue of prevention of performance to the jury though such submission was not justified by the evidence adduced at trial. It is undisputed that the floor in at least part of concrete area one, as originally finished, was not in compliance with the strict requirements of the contract; and that plaintiff made an attempt to remedy the situation but was prevented from doing so by defendant. However, defendant contends, and plaintiff denies, that the contract itself gave defendant the option of making its own provisions for repair or replacement of defective work at plaintiff's expense. The disputed provision of the contract is article 13, the contractor's warranty, which we set out in part:

"Contractor warrants that he shall use sound engineering and construction principles and practices, in the performance of the Work and that he shall apply to the Work that degree of skill, care, judgment, and supervision necessary to assure that the Work shall be of highest quality, with workmanship proper (sic) fit, suitable and sufficient for the purpose contemplated and in accordance with the best trade practices. Contractor further warrants that the Work shall fulfill the terms of all special guaranties established by the contract and that the Work shall be free from defects due to faulty materials, equipment or workmanship Until the expiration of one year from the date of final payment under the Contract or such longer period as may be either provided in the Contract or as may be available to Contractor without additional cost to Polytech. In the event that any of the aforesaid warranties are not fulfilled, Contractor guarantees that he shall promptly reimburse Polytech for its cost in making suitable repairs, or replacements or, at Polytech's option, promptly make suitable repairs or replacements at his own expense." (Emphasis added.)

It is plaintiff's contention that the above warranty was to become effective only upon the date of final payment and that it therefore did not operate to give defendant the option defendant claims because defendant failed to tender the balance of the full contract price in what it offered plaintiff as a final payment. We do not agree. In construing a provision of a contract, the courts are to determine the intent of the parties from the language of the contract itself, reading the contract as a whole and attempting to give effect to every part thereof. Celatron, Inc. v. Cavic Engineering Co., 432 S.W.2d 794, 798 (Mo.App.1968); Brackett v. Easton Boot and Shoe Co., 388 S.W.2d 842, 848 (Mo.1965). In that light, we note that the disputed warranty is immediately preceded in the contract by article 12, which provides that: "Polytech may withhold payment to Contractor to such extent as may be necessary to protect Polytech from loss on account of: . . . A breach by Contractor of any term, condition or provision of the Contract." Plaintiff's construction of Article 13 would require defendant to pay the full contract price before it enjoyed the benefit of the warranty against defective workmanship and materials. This would totally negate defendant's expressly given right under the contract to withhold payment for those same defects. The only way to harmonize articles 12 and 13 is to construe the warranty as fixing only a final, outside time limitation beyond which defendant cannot claim that any unsatisfactory conditions in the rebuilt factory were the result of faulty workmanship or material. There is nothing in the contract to support the contention that the warranty, and defendant's optional remedy thereunder, did not take effect at the inception of construction. Plaintiff, in article 13, made a number of warranties, only one of which included a time limitation. The warranty to provide workmanship "suitable and sufficient for the purpose contemplated" was unrestricted in any manner. Defendant received the option discussed "(i)n the event that any of the aforesaid warranties (were) not fulfilled." Under these specific circumstances, it was therefore erroneous to instruct the jury to consider the issue of prevention of performance in connection with Count I of plaintiff's petition.

Defendant contends that the verdict director was further defective in that it made no mention of the extras, thus permitting the jury to render a verdict for plaintiff on Count I merely by finding that plaintiff had substantially performed the duties imposed by the written contract (or had been prevented from doing so by defendant). We agree with defendant that MAI 26.06 is generally the proper verdict...