Zimmerman v. Conrad

• Citation: 74 S.W. 139
• Parties: ZIMMERMAN v. CONRAD et al.
• Decision Date: 14 April 1903
• Court: Court of Appeal of Missouri (US)

74 S.W. 139

ZIMMERMAN v. CONRAD et al.

Court of Appeals at St. Louis, Missouri.

April 14, 1903.

BUILDING CONTRACTS — DELAY—STIPULATED DAMAGES — PROPORTION TO LOSS — ACTUAL LOSS—EVIDENCE—PERFORMANCE OF CONTRACT —OPINION—INSTRUCTIONS.

1. In an action on a building contract, the opinion of experts as to whether the structure erected was a substantial compliance with the contract was inadmissible.

2. Where plaintiff contracted to construct a church in a cemetery, an instruction that if he had been a resident of the town in which the building was to be constructed for several years, and the ground was soft, on account of the same being used as a graveyard, plaintiff was estopped to rebut the damages from failure to construct it in a workmanlike manner, on account of his previous knowledge of the fact, was superfluous and not within the issues.

3. Where a contract for the construction of a church for the sum of $3,400 provided that the contractor should pay $3 a day for delay after a certain date, such stipulated damages were so grossly disproportionate to the probable value of the use of the building that the owners would only be entitled to recover damages actually sustained.

4. Where, in an action on a building contract, the stipulated damages for delay were grossly disproportionate to the amount of the loss, and there was no evidence as to the actual loss sustained by the delay, an instruction that no damages should be allowed therefor was erroneously refused.

Appeal from Circuit Court, Pemiscot County; H. C. Riley, Judge.

Action by Guy E. Zimmerman against A. R. Conrad and others. From a judgment in favor of plaintiff for less than the amount demanded, he appeals. Reversed.

C. E. Bragg and Brewer & Cotlins, for appellant. S. J. Corbett, for respondents.

REYBURN, J.

This is an action upon a contract of date August 14, 1900, between plaintiff and defendants, composing the board of trustees of the Methodist Episcopal Church South, of the city of Caruthersville, for balance of the contract price for the erection of a brick church. The petition set forth the contract, by which, in consideration of the sum of $3,400, payable in installments as the work progressed, plaintiff agreed to provide all materials for and build the edifice, in good workmanlike manner, in accordance with plans and specifications of a stated architect, upon such lot as might be designated in the city cemetery by the board of trustees, and to commence the work forthwith, and constantly prosecute it, and that all the work should be completed on or before the 15th day of November, 1900, and for each day's delay in the performance and completion of the agreement he should pay to defendants damages in the sum of $3 per day, if such damages should arise from any act or fault of plaintiff. The petition further charged that plaintiff entered upon the performance of his part of the contract, and performed all its conditions, except that the work was not completed until January 25, 1901, and that such delay was occasioned by the weather, and failure of defendants to pay the installments of the contract price according to agreement; that a balance of $1,365 remained due and unpaid, which, coupled with averments of...