Beeler v. Miller

Full title: BEELER v. MILLER

Court: Kansas City Court of Appeals, Missouri

Date published: Feb 2, 1953

254 S.W.2d 986 (Mo. Ct. App. 1953)

Opinion

No. 21818.

February 2, 1953.

APPEAL FROM THE CIRCUIT COURT, SCHUYLER COUNTY, V. C. ROSE, SPECIAL JUDGE.

Charles Rendlen, Branham Rendlen and Rendlen Rendlen, Hannibal, for appellant.

L. F. Cottey, Lancaster, for respondent.

DEW, Judge.

This is an action in quantum meruit in which plaintiff, respondent herein, seeks to recover for the reasonable value of labor and materials alleged to have been furnished by the plaintiff to the defendant. The defendant filed a counterclaim based on breach of contract. The plaintiff recovered verdict and judgment on his petition for $1,736.31, and the verdict and judgment were against the defendant on the counterclaim. Defendant has appealed.

The petition charges that on or about June 1, 1950, at the special instance and request of defendant, the plaintiff on divers dates sold and delivered to the defendant certain materials for the plumbing, heating and guttering of a dwelling house being built by the defendant and performed labor in the installation of the same as shown by itemized accounts attached, in reliance upon the defendant's promise to pay plaintiff therefor, all of said material and labour being of the reasonable cash value, including state sales tax, of $3,689.44. which the defendant promised and agreed to pay on demand. It is further alleged that in partial performance of his promise, the defendant paid to the plaintiff on said account six separate checks, aggregating $1,953.13, which was full payment of said account accrued to October 5, 1950; that the remainder of said account accruing thereafter in the sum of $1,738.20, has not been paid for by the defendant, and upon demand therefor, defendant has refused payment. The petition gives credit for $1.89 overcharge through mistake, leaving a total amount of $1,736.31, now claimed due and unpaid. The prayer asked for a net judgment in the sum of $1,736.31, with interest to May 10, 1951.

The answer challenges the sufficiency of the petition to state a cause of action, and denies generally the plaintiff's statement of the account aforesaid, but alleges that defendant paid the sum of $1,953.13 to the plaintiff for materials and work done upon a contract whereby plaintiff agreed to furnish all labour and materials for the completed installation of all heating, plumbing, guttering and tiling connected therewith on the dwelling house described. Defendant further alleges that plaintiff failed to perform his contract and agreement and received more money from defendant than he was entitled to, and that plaintiff is liable to defendant in a substantial sum for damages suffered by defendant by reason of plaintiff's failure to perform the contract. The answer alleges that plaintiff entered into a contract to furnish all the labor and material described for a total sum of $4,225 to cover the completed job necessary for such plumbing, heating, guttering and tiling; the defendant sets forth in his answer a copy of a document designated "Estimate on K. I. Miller plumbing, heating. Beeler Plumbing and Heating, Lancaster, Missouri", containing an itemization of materials and concluding as follows: "All plumbing and heating installed approximately $4000.00 All gutter, tile and labor for guttering house approx. 225.00". The answer also charges unreasonable delay in the performance of the contract by the plaintiff and asserts that the plaintiff failed to complete the contract.

Defendant further alleges by way of counterclaim that because of plaintiff's delay and failure to complete the contract the defendant was forced to expend time and money in order to have others do and perform the things that plaintiff had agreed to do and that some of the things done and performed by plaintiff were defectively and negligently done, and defendant has sustained damages in the sum of $2,000 by reason of such delays, expenses and losses, for which he asks judgment against plaintiff.

In his reply plaintiff denied having ever agreed to furnish all the necessary plumbing, heating, guttering, tiling, etc., and all the necessary labor therefor, as alleged in the answer and counterclaim, for the sum of $4,225, or any other fixed contract price, and states that the written estimate set forth in the answer was a mere approximation of the probable cost based on the assumption that defendant would select material of average good quality and cost in all instances, but that defendant selected and ordered material and equipment of larger size, of different manufacture, of better quality and higher cost than those specified and contemplated in the estimate, and ordered and obtained from the plaintiff supplies and services not referred to or contemplated therein. The reply denied every allegation in defendant's counterclaim.

According to plaintiff's evidence defendant built a residence as a gift to his daughter. Prior to beginning the construction defendant engaged a firm of carpenter contractors to obtain the probable cost of the proposed dwelling in accordance with certain blueprints. Among others, the plaintiff, a plumber and local dealer in plumbing, heating and guttering materials, was asked by the carpenters for his approximation of the cost of labor and materials for the plumbing, heating and guttering of the proposed house according to the blueprints. No specifications were supplied him. He told the defendant the prices would be based on the average type and quality of fixtures selected, that the figures would be based on the medium prices and would depend on any rise of the price of such materials. He told the defendant that any extras ordered would be charged as extras. Defendant had not decided on the kind or size of the oil tank for the oil heating plant, and he instructed plaintiff to omit that item in the estimate. He told plaintiff a third bathroom shown on the blueprint would not be roughed in as planned, and should also be omitted from the estimate. Plaintiff was told by the defendant that defendant's daughter would later select the bathroom fixtures.

Plaintiff testified that he later prepared and furnished the defendant with the following instrument in writing, described in defendant's answer:

"Estimate on K.I. Miller Plumbing, Heating Beeler Plumbing Heating Lancaster, Missouri

1 — American Standard 1 piece stool 1 — American Standard 22 x 18 lavatory with legs and towel bars. 1 — American Standard 5' recess tub with shower and curtain rod. 1 — Crane stool 1 — Crane lavatory with towel bars and legs. 2 — Medicine cabinets. 1 — Sink single bowl with 2 drainboards. 1 — Laundry tray. 1 — Kewanee boiler including all convectors and piping. 1 — Electric heater.

All pipes and material pertaining to plumbing and heating including labor. All plumbing and heating installed approximately $4000.00 All gutter, tile and labor for guttering house approx. $ 225.00".

The plaintiff further testified that defendant ordered him to proceed with the work and later defendant's daughter selected from the stock on hand and from the catalogs plumbing fixtures and accessories more expensive than the average and some which were not included in the estimates at all. The carpenters ordered certain flashing of bent copper and galvanized iron for the roof and cornices which were not included in the estimate. Later radiators were selected, the price of which was the highest shown in the catalogs. Defendant later selected and ordered an oil storage tank, not included in the estimate, and concluded to have the third bathroom roughed in and instructed the defendant to include an order for the same. Plaintiff accordingly furnished and installed an oil storage tank and roughed in the plumbing for a third bathroom, running the drains and connected them with the septic tank, installing the hot and cold water pipes and placing the trap, doing all but setting the fixtures. The plaintiff promptly ordered the radiators (convectors) from a responsible firm in Hannibal. In the meantime plaintiff submitted his bills from time to time to cover labor and materials to date, and defendant paid them, six in number, aggregating $1,953.13, covering all items furnished to November 2, 1950. The radiators ordered in the previous June, had not arrived in November and defendant vigorously complained about the delay.

Plaintiff further testified that he submitted a bill in January, 1951, for $179.82 to cover items furnished since the last settlement, and defendant refused to pay it, stating he would pay no further bills until the radiators had been installed. At defendant's request, plaintiff checked the order for the radiators with the Hannibal wholesaler and was told that efforts would be made to rush the order which plaintiff reported to defendant. Plaintiff also went to Kirksville and found some radiators there but not of the size required. Defendant continued to complain of the delay and in January, 1951, told the plaintiff if the radiators did not arrive soon he would order them elsewhere. The radiators were to be recessed in the walls and in February there was no heat in the building. The hardwood floors had not yet been laid and wiring was being installed. About March, defendant called plaintiff by `phone and canceled the order for the radiators. Plaintiff delivered two radiators in April, which he had on hand. On March 9, defendant placed a new order for radiators at Kirksville and engaged a plumber there to come to Lancaster and install and complete the plumbing and heating yet to be done, which work was finished in August. In the meantime, about May 1, plaintiff went to Morris, Illinois, and applied for a job there, but returned to Lancaster and did not move his family until about a month later. Meanwhile he did further work on defendant house, the last day being May 7. About May 10, he learned that defendant had hired a new plumber to install the radiators and to complete the plumbing and heating installation.

Plaintiff testified that his charges for all the labor and material furnished by him to the defendant were reasonable. In this connection he testified that it was customary in the vicinity of Lancaster for the retail plumbers to charge 30 percent over the wholesale price, and that he charged 25 and 30 percent on the items furnished to the defendant. It was shown that the Kirksville dealer from whom the defendant placed a new order for the radiators had added 45 percent to the wholesale price when charged to the defendant. Plaintiff denied that he at any time agreed to furnish all labor and material necessary for plumbing, heating and guttering of the defendant's house for the sum of $4,225, nor that the defendant ever told him that plaintiff could have the job for that figure if he wanted it and if not, that he would look elsewhere for a plumber to furnish such labor and materials.

Defendant's evidence was to the effect that he asked plaintiff, referring to the "estimate" in question, "You think that the entire bill will not exceed $4200?", to which defendant replied "Yes"; that plaintiff took into consideration the omitted items when fixing the totals in his paper; that defendant made repeated demands of plaintiff to install the radiators and finally in March, 1951, canceled the order for them and purchased some for $842.03 at Kirksville, hiring a plumber from there to install same and to complete the plumbing and heating of the house at a cost to defendant of $236.70. Defendant testified that the delay by the plaintiff in completing his job caused the defendant to pay 15 to 20 percent increase in items for the house between November, 1950 and the spring of 1951, and caused the loss of $200 in rents on another house of his being occupied by his daughter while awaiting completion of the new dwelling.

The plaintiff testified that when he requested payment for the balance due him, defendant said he would wait until the job was done and would deduct from the plaintiff's contract of $4,225, the amount paid by the defendant for the radiators he purchased elsewhere and the bill for the new plumber. There is no proof that plaintiff did not furnish all the items of labor and materials shown in his account, nor that the same were unsatisfactory, and the reasonableness of their value was submitted to the jury on substantial evidence.

Defendant's first point is that plaintiff's Instruction 1 is erroneous in that it purports to cover the whole case, directs a verdict, but fails to submit the existence of a contract, for the maximum prices, and ignores defendant's counterclaim. The instruction on its face requires the jury to find that no fixed price or time for the furnishing of the items of plaintiff's claim had been agreed upon. It also tells the jury that if the verdict be for the plaintiff thereunder, the jury should also find the issues for the plaintiff on defendant's counterclaim. The counterclaim was based on the theory of breach of contract and was so submitted to the jury by defendant's Instruction D-6, which, in turn, referred to other instructions respecting the same. We find the first point not well taken.

The next point here made is that plaintiff's Instructions 1 and 4 were erroneous in allowing plaintiff to recover a contractor's profit in a suit in quantum meruit. In such a suit a plaintiff is not precluded from seeking a profit for his labor or materials. What it cost him to supply them may be some evidence of their reasonable value but is not conclusive. Fuhler v. Gohman Levine Constr. Co., Mo.Sup., 142 S.W.2d 482, 484; Johnston v. Star Bucket Pump Co., 274 Mo. 414, 202 S.W. 1143, 1153.

The next point of error is that Instructions 1 and 4 erroneously permitted plaintiff to recover an amount greater than the difference between what he had been paid and the total contract price. This raises the main question in the case as to whether plaintiff made a contract fixing the maximum price for all labor and material necessary for the plumbing, heating and guttering of the defendant's house. This was one of the issues submitted to the jury and the verdict, in effect, is that no such contract was made by the plaintiff. Plaintiff's evidence justifying the verdict of the jury on this issue was that plaintiff was approached with a request to furnish the approximate cost of such items; that only the blueprints were then presented to him and not the exact specifications; that he explained to the defendant that the materials considered would be of the usual type and quality and would depend on price fluctuations; that under the instructions of the defendant the oil storage tank was omitted, to be later considered, and the roughing in for the third bathroom was to be omitted, although later ordered and installed. The evidence further showed that the document furnished the defendant plainly designated the same on its face to be an "estimate", showing only totals which were plainly labeled "approximately". The word here used was in its ordinary sense and not technical as made so under ordinances or statutes. It was said in Gratz v. City of Kirkwood, 165 Mo.App. 196, 209, 145 S.W. 870, 874: "An estimate does not pretend to be based on absolute calculations but is exactly what the word means, an estimate. To make an estimate, ordinarily means `to calculate roughly, or to form an opinion as to amount from imperfect data'". The opinion further states: "The use of the word estimate `precludes accuracy. * * * Monthly estimates are understood to be mere approximations'", citing Shipman v. State, 43 Wis. 381, 389, and 1 Redfield on Railways, 436. It is said in National Mutual Fire Ins. Co. v. Duncan, 44 Colo. 472, 98 P. 634, 637, 20 L.R.A., N.S., 340, that an "estimate" is to "Judge and form an opinion of the value of from imperfect data; * * * to fix the worth of roughly or in a general way". See, also, New Orleans Terminal Co. v. Dixie Rendering, Inc., La.App., 179 So. 98, 100, 101; State Highway Commission of Kentucky v. Board, 245 Ky. 799, 54 S.W.2d 315. 319; Bautovich v. Great Southern Lumber Co., 129 La. 857, 56 So. 1026, 1027. In Mills-Carleton Co. v. Huberty, 84 Ohio St. 81, 95 N.E. 383, 384, it was held that an estimate of the cost of lumber for a proposed building, taken in its ordinary meaning excludes the idea of an exact schedule of material, not to be increased or diminished as the building progressed but, on the contrary, was an approximate calculation of the lumber required. In view of the evidence and the authorities, we are unable to say, as a matter of law, that the plaintiff in this case entered into a contract by which he agreed to supply all the labor and material for the plumbing, heating and guttering of the defendant's house at a maximum total price of $4,225. This being true, the plaintiff's recovery was not limited to the difference between what he had been paid on his account and the amount shown on his estimate.

Defendant makes the further point that the damages assessed were excessive and not supported by the evidence. We believe what we have said covers this point and we rule it against the defendant.

Lastly, defendant complains of a remark made by plaintiff's counsel in his final argument to the jury in urging the verdict for his client for the full amount with interest. Plaintiff's counsel said: "It is important for the public to generally know that we expect people to pay their honest debts — not threaten to chisel or blackmail them out —. Objection was here made to the remark as a reflection upon the defendant, and the court was asked to rebuke counsel and to discharge the jury. The court sustained the objection and directed the jury to disregard the statement of plaintiff's counsel, and denied the motion to discharge the jury. Defendant's counsel excepted to the action of the court in not rebuking plaintiff's counsel and in not discharging the jury.

The statement of plaintiff's counsel, of course, cannot be commended. It was, however, not ignored by the court and it sustained the objection made, and the jury was told that they should disregard the remarks. It rested largely in the discretion of the trial court to consider what further action it should take as to the remark of counsel, and we are not warranted in supplanting our judgment in the instant episode to that of the trial court as to whether or not the expressions used by counsel left any prejudice in the minds of the jury after the rulings of the court.

Finding no errors materially affecting the merits of the case we believe the judgment should be affirmed. It is so ordered.

All concur.