Summary
In Oliver L. Taetz, Inc. v. Groff, 363 Mo. 825, 253 S.W.2d 824 (1953), heating oil used to heat the building during construction to prevent fresh plaster from freezing was a lienable item.
Summary of this case from Brownstein v. Rhomberg-Haglin AssocOpinion
No. 42894.
January 9, 1953.
Action for an equitable mechanics' lien for the construction of a building. The review is de novo on appeal. The building contract was not abandoned. A recovery may be had in quantum merit, but not in excess of the contract price. Account items were sufficiently definite. Various items are held to be lienable and some not lienable. Certain items were improperly charged. 10% profit and 4% overhead were properly allowed. Joint contractors were jointly liable for items subsequently segregated at their request. Oral evidence relating to a collateral contract was admissible. A corrected judgment for plaintiffs should be entered.
1. APPEAL AND ERROR: Equity: Mechanics' Liens: Review De Novo. The review on appeal is de novo.
2. MECHANICS' LIENS: Contracts: Building Contract Not Abandoned. The building contract was not abandoned, although many changes were made.
3. MECHANICS' LIENS: Contracts: Building Contract: Recovery in Quantum Meruit Permitted. A recovery may be had in quantum meruit for services rendered, but the recovery may not exceed the contract price.
4. MECHANICS' LIENS: Contracts: Building Contract: Overcharges on Plumbing and Heating. Charges for plumbing and heating were more than the amount authorized under the contract and certain labor charges were not proper items.
5. MECHANICS' LIENS: Building Contract: Item of Account Sufficiently Definite. The account item showing the charge for brick work was sufficiently definite.
6. MECHANICS' LIENS: Room and Board of Bricklayers Subject to Lien. Room and board of bricklayers working a long distance from their homes was a lienable item.
7. EVIDENCE: Contracts: Oral Evidence of Collateral Contract Sufficient. Oral evidence of a written contract only collaterally involved was admissible. And there was no objection that such testimony was not the best evidence.
8. MECHANICS' LIENS: Cement Item Sufficiently Definite. The item relating to cement coping was sufficiently definite.
9. MECHANICS' LIENS: Contracts: Segregated Accounts of Joint Contractors. Where defendants, who were actually lessors and lessee, jointly contracted for the construction of a building and then subsequently requested certain items to be segregated, all defendants are jointly liable for such segregated items.
10. MECHANICS' LIENS: Adjustment in Electrical Account. An adjustment should be made in the amount due on the electrical account.
11. MECHANICS' LIENS: Fuel Oil Lienable. Fuel oil used to prevent the plaster from freezing is lienable.
12. MECHANICS' LIENS: Gravel Not Lienable. Gravel used across the highway was not lienable.
13. MECHANICS' LIENS: Boiler Not Charged Twice. The trial court properly found that a boiler was not charged twice.
14. MECHANICS' LIENS: Profit and Overhead Properly Allowed. 10% profit and 4% overhead were properly allowed.
Appeal from Franklin Circuit Court; Hon. R.A. Breuer, Judge.
REVERSED AND REMANDED ( with directions).
Jerome A. Gross and W.R. Gilbert for appellants Groff; Anderson, Gilbert, Wolfort, Allen Bierman of counsel.
(1) The trial court erred in permitting recovery against the fee owners, defendants Groff, for items ordered by the lessee, defendant Eckelkamp, alone: For the balance of $4,558.29 of the separate account of plaintiff for items furnished to defendant Eckelkamp. Martin-Welch v. Moor, 16 S.W.2d 667. (2) For the balance due defendant J.D. Shepard of $2,027.26 for electrical work and materials, together with the 10% profit and 4% overhead percentages allowed plaintiff thereon, or $283.82, total $2,311.08, which items are not excepted to by defendant Eckelkamp; for the reason that said Shepard failed to prove the items incorporated and refused to distinguish between items furnished for the Groff construction account and those furnished for defendant Eckelkamp alone. Mansfield Lbr. Co. v. Johnson, 91 S.W.2d 239; Sechrist v. Hufty Rock Asphalt Co., 63 S.W.2d 193. (3) For items not incorporated and found to be nonlienable totalling $862.07, including uninstalled electrical controls for the heating system, a bookkeeping charge, sand and gravel for adjacent premises, and work on cabins on adjacent premises. Tallman Co. v. Villmer, 133 S.W.2d 1085; Carthage Superior Limestone Co. v. Central Methodist Church, 156 Mo. App. 271, 137 S.W. 1028. (4) The court erred in permitting the recovery in quantum meruit for items not sufficiently pleaded or proved: In respect of the item "Final Payment on contract Thos. R. Pratt, Bricklaying Contractor, $4917.48" and the 10% and 4% contract percentages computed thereon, total amount $5605.91, because: It is a "lumped" charge and not pleaded or proved with the particularity requisite for a quantum meruit recovery. Foster v. Wulfing, 20 Mo. App. 85; Rude v. Mitchell, 97 Mo. 365; Lowis v. Cutter, 6 Mo. App. 54; Major v. McVey, 128 S.W.2d 347; Annotation, 149 A.L.R., l.c. 718. (5) The contract was not offered in evidence by plaintiff, nor was there testimony as to its terms, resulting in a total failure of proof. (6) Since the alleged contract, in the control of plaintiff and not of defendants, was not offered in evidence, the law presumes it would not substantiate any recovery by plaintiff. Burnside v. Doolittle, 324 Mo. 722, 24 S.W.2d 1011; Tichenor v. Brown, 133 S.W.2d 324; Bailey v. Metropolitan Life Ins. Co., 343 Mo. 435, 115 S.W.2d 151. (7) All labor and materials were admittedly covered by other charges, and the final payment was a profit item not recoverable as such in quantum meruit. (8) In respect of two items designated "Work, material and labor in installing cement coping as per contract," with the 10% profit and 4% overhead percentages thereon, total amount $615.14 because the plaintiff proved there was no such contract; hence there was a total failure of proof. Plaintiff's only testimony related to the bricklaying contract which plaintiff failed to put in evidence; therefore, the law presumes it would have failed to substantiate the plaintiff's position. Burnside v. Doolittle, 324 Mo. 722, 24 S.W.2d 1011; Tichenor v. Brown, 133 S.W.2d 324; Bailey v. Metropolitan Life Ins. Co., 343 Mo. 435, 115 S.W.2d 151. (9) The items were not pleaded or proved with the particularity requisite for a quantum meruit recovery. Rude v. Mitchell, 97 Mo. 365; Lowis v. Cutter, 6 Mo. App. 54; Major v. McVey, 128 S.W.2d 347; Foster v. Wulfing, 20 Mo. App. 85; Annotation, 149 A.L.R., l.c. 718. (10) The trial court erred in allowing the plaintiff to recover a judgment and lien against defendants Groff for room and board of bricklayers, together with 10% profit and 4% overhead percentages thereon, total amount $1,499.10, because such charges were not labor or material and were not incorporated into the building. (11) The proof offered of alleged reasonableness was testimony of the mere existence of a contract providing for a union scale, and the contract and the wage scale provisions were: Not proved as to amount nor shown to apply to the facts of the case. (12) Not offered by plaintiff in evidence, wherefore the law presumes they would not substantiate a recovery by plaintiff. Burnside v. Doolittle, 324 Mo. 722, 24 S.W.2d 1011; Tichenor v. Brown, 133 S.W.2d 324; Bailey v. Metropolitan Life Ins. Co., 343 Mo. 435, 115 S.W.2d 151. (13) The plaintiff, having completed the building and having elected to sue in quantum meruit, is limited in its recovery in quantum meruit by the terms of the construction contract put in evidence by the plaintiff itself. Cozad v. Elam, 115 Mo. App. 136, 91 S.W. 434; American Surety Co. v. Fruin-Bambrick Const. Co., 182 Mo. App. 667, 166 S.W. 333; 2 Sedgwick, Damages (9th Ed.), sec. 655 f; Cf. McCullough v. Baker, 47 Mo. 401. (14) Plaintiff was under a duty as general contractor not to falsify its billings but to charge only the actual costs of materials furnished. Dougherty Moss Lbr. Co. v. Rothman, 156 Mo. App. 215, 137 S.W. 83; Green v. Post, 237 P. 307. (15) The trial court erred in allowing plaintiff to recover, under items pleaded as "5 hours plumber's time," etc., charges in excess of the amounts paid out for labor, totalling $453.79, and testified by plaintiff to be for the use of trucks, together with the contract percentage of 8% for social security and workmen's compensation, 10% profit and 4% overhead, total amount $553.62, because such charges were not recoverable under the pleadings as hours of plumbing labor. Piehl v. Marino, 254 Wis. 538, 36 N.W. 694. (16) There was no just and true account as required by statute. Rude v. Mitchell, 97 Mo. 365; Reese v. Hoyer, 95 S.W.2d 884. (17) The contract percentages for overhead and profit were to compensate plaintiff for the use of such equipment. Shaw v. Beaumont Co., 88 N.J. Eq. 333, 102 A 1.151, 2 A.L.R. 122; Savannah, A. R. Co. v. Oliver, 174 F. 140; Mailander v. Continental State Bank, 11 S.W.2d 615; Advance Auto Body Works v. Asbury, 52 P.2d 958. (18) Plaintiff, having elected to sue in quantum meruit, was not entitled to recover therein the profit and overhead allowance percentages provided under the contract, amounting respectively to $12,153.58 and $4,860.73, exclusive of the profit and overhead percentages included in the other items which ought to be disallowed as against defendants Groff: Because by his choice of remedy plaintiff waived the benefits of the contract. Bradley Heating Co. v. Sayman, 201 S.W. 864; Kansas City Structural Steel Co. v. Athletic Bldg. Assn., 297 Mo. 615, 249 S.W. 922; Rodgers v. Levy, 199 S.W.2d 79. (19) Because plaintiff did not plead or prove these percentages to be for services of superintendence in connection with labor or material, but in fact charged and recovered separately for superintendence. Bradley Heating Co. v. Sayman, 201 S.W. 864; Rodgers v. Levy, 199 S.W.2d 79; Cf. Fagan v. Brock Motor Car Co., 282 S.W. 135.
Theodore P. Hukriede and Frank W. Jenny for appellant Louis B. Eckelkamp, Inc.
(1) The petition is plainly one in quantum meruit and the plaintiff cannot, therefore, recover damages as for a breach of contract. Kansas City Structural Steel Co. v. Athletic Bldg. Assn., 249 S.W. 922, 297 Mo. 615. (2) A contract may be waived and suit brought in quantum meruit, but the recovery cannot exceed the contract price. C.H. Robinson Co. v. Frissell, 132 S.W.2d 1049; Fuldner v. Isaac T. Cook Co., 127 S.W.2d 726. (3) Where deviations and changes are permitted under contract which do not constitute a radical and substantial departure from the original contract, they cannot be said to constitute an abandonment of the original contract. 9 Am. Jur. 14. (4) Where the contractor has breached the contract, and then sues for material and labor in quantum meruit, it is proper to limit his recovery to the contract price. Philip G. Johnston v. Star Bucket Pump Co., 274 Mo. 414; Eyerman v. Mt. Sinai Cemetery Assn., 61 Mo. 498. (5) A contractor, when he agrees to build, must, in the absence of a contrary agreement, furnish all the tools and necessary appliances for the work contracted to be done. Shaw v. Beaumont Co., 2 A.L.R. 122, 102 A. 151. (6) The court was in error in overruling the exception to the report of the referee, in that such report and finding of the referee allowed the plaintiff its charges in full for plumbing and heating material, when such charges were in excess of the contract price. An important rule in the construction of contracts is that the interpretation must be upon the entire instrument and not merely upon disjointed or particular parts of it. The whole context is to be considered in ascertaining the intention of the parties, even though the immediate object of inquiry is the meaning of an isolated clause. Schott v. Insurance Co., 31 S.W.2d 7. (7) Where particular words of description are followed by general terms, the latter will be regarded as referring to the things of like class with those particularly described. Fulkerson v. Great Lakes Pipe Line Co., 60 S.W.2d 71. (8) For the purpose of determining the intention of the parties and reaching a construction that is fair and reasonable under all the facts and circumstances, the court may consider the relationship of the parties, the subject matter of the contract, the usages of the business, the surrounding facts and circumstances attending the execution of the contract and its interpretation by the parties. Paisley v. Lucas, 143 S.W.2d 262. (9) If a contract is susceptible to different constructions, it should be construed most strongly against the party who prepared and handed it out to those with whom it was dealing, particularly to those unacquainted with the business in hand. Groghen v. Savings Trust Co., 85 S.W.2d 239. (10) Although it is an elementary rule that parol evidence is inadmissible to vary, add to, take from, or contradict the terms of a written contract, it does not preclude the consideration of parol or extrinsic evidence for the purposes of aiding in the construction of the contract in case of ambiguity in its terms. Baptiste Tent Awning Co. v. Uhri, 129 S.W.2d 9. (11) The court was in error in affirming the referee's finding and allowing plaintiff's charges for items of the account which by their very nature were not labor or material actually part of the construction of the building; all specifically excepted to in the exceptions filed by defendant. Sechrist v. Hufty Rock Asphalt Co., 63 S.W.2d 193; Schroeter Bros. Hdw. Co. v. Croatian Sokol Assn., 58 S.W.2d 995, 332 Mo. 440. (12) The court was in error in affirming the referee's finding in that such finding allowed the following charge made by the plaintiff, to-wit: "Final payment on contract Thos. R. Pratt Bricklaying Contractor, $4,917.48," without any further pleading or proof that charge was for labor or material entering into the construction of the building, and the exceptions of the defendant specifically excepted thereto. H.B. Deal Co. v. Hamilton Brown Shoe Co., 160 S.W.2d 719; Tallman Co. v. Villmer, 133 S.W.2d 1085; Rude v. Mitchell, 97 Mo. 365. (13) The custom relied upon by plaintiff was a substantive part of plaintiff's cause of action, and would have had to have been specially pleaded in order to make admissible any evidence of such custom. H.W. Eddy Ins. v. National Fire Ins. Co., 94 S.W.2d 1062; Dietz v. Nix, 216 S.W. 791. (14) Where there is no proof that the contractor was prevented from carrying out the contract but he still elects to sue in quantum meruit, percentage charges cannot be allowed in addition to the reasonable value of labor and material furnished. Bradley Heating Co. v. Thomas M. Sayman Realty Inv. Co., 201 S.W. 864; Rodgers v. Levy, 199 S.W.2d 79. (15) When improper items are knowingly and intentionally included in the lien statement, then the account so filed may not be regarded as "just and true" within the meaning of the statute, and can form no basis for the adjudication and establishment of a lien for any part of the account. Reese v. Hoyer, 95 S.W.2d 884.
Oliver F. Erbs for respondent J.D. Shepard d/b/a J.D. Shepard Radio Electrical Service.
(1) The contract between Taetz, Inc., and appellants was not for a stipulated sum, and was indefinite as to the building to be constructed. The building erected was substantially different from the one vaguely described in the contract, was changed and added to materially at the direction of the appellants. The construction agreement was abandoned. Baerveldt Honig Const. Co. v. Dye Candy Co., 357 Mo. 1072, 212 S.W.2d 65. (2) The appellants breached the implied contract with respondent Taetz, Inc., for the reason that the evidence showed that the appellants failed and refused to make payments under the contract with Taetz, Inc., and for the additional reason that the respondent J.D. Shepard, sub-contractor, and Taetz, Inc., original contractor, were ordered to stop work on September 15, 1949, and before the installation of all materials accumulated on the job site, and the completion of the Taetz, Inc., contract and Shepard's sub-contract. Fuhler v. Gohman Levine Construction Co., 346 Mo. 588, 142 S.W.2d 482; Johnston v. Star Bucket Pump Co., 274 Mo. 414, 202 S.W. 1143. (3) The court did not err in rendering a judgment for the amount of the indebtedness due Shepard because the evidence showed that Taetz, Inc., was the general contractor under contract with all appellants for the construction of the New Diamonds building and improvements. Taetz, Inc., was required to use materials and labor in the performance of its contract with appellants such as those furnished by this respondent, and the evidence showed that Taetz, Inc., was indebted to this respondent for the amount of the judgment rendered. Sec. 429.010, RSMo 1949; Winslow Bros. Co. v. McCully Stone Mason Co., 169 Mo. 236, 69 S.W. 304; Cleary v. Siemers-Marshall Electric Co., 296 S.W. 448. (4) The court did not err in sustaining a lien against the fee simple title and leasehold interest respectively of the appellants. Sec. 429.070 RSMo 1949; Julius Seidel Lumber Co. v. Hydraulic Press Brick Co., 288 S.W. 979. (5) Respondent J.D. Shepard, a sub-contractor, was under no direct contractual relation with appellants. Under his contract with Taetz, Inc., this respondent was obligated by the provisions thereof to furnish statements of time and materials to Taetz, Inc., only. This respondent, the evidence showed, kept and maintained his account as one continuous running account under the name or heading of "New Diamonds, Villa Ridge, Mo., c/o O.L. Taetz, Inc." This respondent was not obligated to and could not bill appellants individually for the sum of money due this respondent, because the account was not charged to appellants. Bruce v. Berg, 8 Mo. App. 204. (6) The court did not err in rendering a money judgment in favor of this respondent and against Taetz, Inc., and adjudging a mechanic's lien against the fee simple title of appellants Groff, the building and improvements and against the leasehold title and estate of appellant Eckelkamp, Inc., because this respondent proved the indebtedness due him by Taetz, Inc., general contractor, and complied with the applicable statutes. Secs. 429.080, 429.100, 429.010, 429.070, 429.170, RSMo 1949.
Leo F. Laughren and Virginia B. Hukriede for respondent Oliver L. Taetz, Inc.
(1) The original contract between the appellants and respondent Oliver L. Taetz, Inc., for the construction of the New Diamonds was indefinite and not for a firm price. The building as erected was materially different from the one vaguely provided for in the original contract and was changed and added to materially at the direction of the appellants while the work was in progress. Hence, the contract was abandoned and the respondent Oliver L. Taetz, Inc., was entitled to recover on quantum meruit basis. Baerveldt Honig Const. Co. v. Dye Candy Co., 212 S.W.2d 65, 357 Mo. 1072. (2) The appellants breached the implied contract with the respondent Oliver L. Taetz, Inc., because the evidence is undisputed and it is admitted that the appellants did not pay the respondent as provided by the terms of the contract and the reason for not paying the respondent was due to the fact that appellants had some difference among themselves. The evidence also showed that respondent was ordered off the work and was compelled to stop the work before completing the contract. The respondent could sue in quantum meruit and would not be bound by the contract price. Fuhler v. Gohman Levine Construction Co., 346 Mo. 588, 142 S.W.2d 482; Johnston v. Star Bucket Pump Co., 274 Mo. 414, 202 S.W. 1143. (3) The court did not err in rendering a judgment against the appellants Groff including the $4,558.29 because there was but one contract between the respondent Taetz, Inc., and appellants to build but one building which the appellants were jointly erecting. The contract was signed by all the appellants and the material and labor were of permanent benefit to the building and improvement, fee simple title and leasehold interest in the land. Berkshire Lumber Co. v. J.S. Chick Inv. Co., 170 Mo. App. 1, 155 S.W. 904; Kneisley Lumber Co. v. Edward B. Stoddard Co., 113 Mo. App. 306, 88 S.W. 774. (4) The court did not err in rendering a judgment for J.D. Shepard, the electrical subcontractor, against Taetz, Inc., the general contractor, and adjudging a mechanic's lien therefor against the one acre of land, building, and improvements, and the fee simple title and leasehold estate, respectively, of the appellants because the undisputed evidence is that the subcontractor furnished the labor and installed the material under a contract between the general contractor and the appellants. Secs. 429.010, 429.070, RSMo 1949; Martin-Welch Hardware Plumbing Co. v. Moor, 16 S.W.2d 667; Julius Seidel Lumber Co. v. Hydraulic Press Brick Co., 288 S.W. 979. (5) The court did not err in permitting a recovery against all the appellants for material found to be nonlienable, totalling $862.07, because the evidence is undisputed that all of the appellants contracted for the materials involved with respondent Taetz, Inc. Tallman v. Villmer, 133 S.W.2d 1085. (6) The statement in the complaint, "Final payment on contract Thos. R. Pratt 4917.48," must be considered with the many detailed items of brick, mortar and bricklayers' labor as constituting the itemized bricklaying subcontract, and, being a statement of the balance of a single charge based on the contract of the subcontractor, is, therefore, valid as a lien claim against the appellants. Mitchell Planing Mill Co. v. Allison, 40 S.W. 118, 138 Mo. 50; Hilliker v. Francisco, 65 Mo. 598; Leach v. Bopp, 12 S.W.2d 512. (7) The final payment on the subcontract of Thos. R. Pratt is not a "lumped" charge because the charge includes only lienable items that were the subject of an express contract for a given price with the subcontractor and the prices were also shown to be the reasonable value thereof. Holland v. Cunliff, 69 S.W. 737, 96 Mo. App. 67; Hilliker v. Francisco, 65 Mo. 598. (8) The court did not err in allowing respondent Taetz, Inc., to recover a judgment and lien against the appellants for the room and board of bricklayers because the provision in the contract for room and board was part of the contract price and are lienable items. Crane v. Westerman, 8 N.W.2d 412, 232 Iowa 1394. (9) The Pratt subcontract was involved only collaterally at the trial and the contents were not directly involved in the controversy. Hence, oral evidence was admissible to prove the existence of the contract and its contents and no unfavorable inference is permissible because respondent Taetz, Inc., did not introduce the contract in evidence. 20 Am. Jur., sec. 406, p. 367; 32 C.J.S., sec. 787, p. 713; Schwartz v. Mercantile Trust Co., 279 S.W. 253. (10) The respondent is entitled to recover the fair, reasonable market value of the plumbing items. Fuhler v. Gohman Levine Construction Co., 346 Mo. 588, 142 S.W.2d 482; Johnston v. Star Bucket Pump Co., 274 Mo. 414, 202 S.W. 1143. (11) Respondent Taetz, Inc., sued in quantum meruit and was entitled to recover therein 10% on the aggregate of the value of the materials, labor and subcontracts as profit and 4% on the aggregate of the value of labor, materials and subcontracts as an overhead expense because the contract provided for such payments and the testimony, uncontradicted, undenied and undisputed, is that Taetz, Inc., was the general contractor and it planned the construction, accumulated the materials, let the subcontracts and did all things necessary of a general contractor. The charges as claimed were proper and reasonable. Fuhler v. Gohman Levine Construction Co., 346 Mo. 388, 142 S.W.2d 482; Tual v. Martin, 228 Mo. App. 30, 66 W.W.2d 969; Leach v. Bopp, 12 S.W.2d 512; Fagan v. Brock Motor Car Co., 282 S.W. 135. (12) The construction contract plainly provides that the respondent Taetz, Inc., was to receive 10% on the aggregate of the value of the materials, labor and subcontracts as a profit and 4% on the aggregate of the value of the labor, materials and subcontracts as an overhead expense. This is not doubtful or ambiguous language. Even if ambiguous, the parties construed these provisions of the contract by making semi-monthly payments, without objection of any sort, from April to November, 1948. The court should give these plain, unambiguous words their literal meaning, the meaning given thereto by the parties. Lee v. Missouri State Life Ins. Co., 303 Mo. 492, 261 S.W. 83. (13) The court did not err in including in the judgment the sum of $192.40, being 10% and 4% commission on cost of certain labor, even though the labor was furnished by the appellants at their expense. It was still a cost of labor used upon the job. (14) The court did not err in including in the judgment the sum of $238.63 because the evidence showed the items (brushes, brooms, buckets, steel wool, etc.) and their fair, reasonable value were consumed in the building. Hydraulic Press Brick Co. v. Green, 177 Mo. App. 308, 164 S.W. 250. (15) The court did not err in including in the judgment the sum of $282.90 for fuel oil because the evidence showed it was necessary to provide heat to protect the work from the elements and that the charge was the fair, reasonable market value thereof and consumed in the building. E.R. Darlington Lumber Co. v. Westlake Const. Co., 161 Mo. App. 723, 141 S.W. 931. (16) The court did not err in including in the judgment the sum of $69.83 for personal and travel expense of the Marflex floor finisher because this charge was part of his wage for labor. Fagan v. Brock Motor Car Co., 282 S.W. 135. (17) The court did not err in including in the judgment the sum of $539.60 for the installation of the coping on the building because the allegations of the complaint were sufficient and the evidence proved the items and that the coping was actually installed. Hanenkamp v. Hagedorn, 110 S.W.2d 826. (18) The court did not err in including in the judgment the sum of $765.37 being part of the wage for labor paid to plumbers because the evidence showed the items used by the plumber were necessary to accomplish his work and was a basis in determining the fair, reasonable value of the wage to the owners. (19) The court did not err in including in the judgment the sum of $1542.80 for one Crane Company Fitzgibbon Steel Boiler for Oil DM-61 because the evidence showed there was not a duplicate charge on the boiler. (20) The lien statement and complaint were in compliance with the statute and authorized the judgment and lien because there was no showing of fraud or bad faith. The non-lienable items are separable from the balance of the account. The account does not contain "lumped" charges. The mistakes in the preparation of the lien and complaint were the result of inadvertence or honest mistake and no one has been injured or misled thereby. Moller-Vandenboom Lumber Co. v. Boudreau, 231 Mo. App. 1127, 85 S.W.2d 141; Woodling v. Westport Hotel, 227 Mo. App. 1231, 63 S.W.2d 207.
This is an equitable mechanic's lien suit brought by the respondent, Oliver L. Taetz, Inc., a corporation, in the circuit court of Franklin County, to recover a judgment against the appellants Ursula Groff and Spencer Groff, (hereinafter referred to as Groff), and Louis B. Eckelkamp, Inc., a corporation, (hereinafter referred to as Eckelkamp), for the balance due respondent for the construction of a building located at the junction of highways 50, 66 and 100, to have the judgment declared and adjudged to be a mechanic's lien upon the building, improvements and the land, and to have the lien declared a priority over a deed of trust held by the Bank of Washington. J.D. Shepard, doing business as J.D. Shepard Radio and Electrical Service, was a subcontractor who did the electrical installations. He was joined as a defendant and he filed a cross bill.
The trial court appointed Hon. Walter Wehrle as referee to try the issues except as to the issue of cancelling a lease on the property which was granted to Eckelkamp by Groff for a term of years. As to that issue a separate trial and judgment were ordered. In the main, the court approved the referee's report and rendered a judgment in favor of respondent and against Groff and Eckelkamp in the sum of $80,740.17, with a lien against the property and leasehold described in respondent's petition for $79,878.10. The lien was declared superior to the deed of trust held by the Bank of Washington which secured a note executed by Groff for $30,000, except for the sum of $8,000 that paid a prior deed of trust. Eckelkamp was given a judgment for $700 on his cross-claim against respondent. The Bank of Washington was [827] given a judgment on its cross-claim against respondent in the sum of $55,265.21 and J.D. Shepard was given a judgment against respondent in the sum of $2,027.26. These sums were to be paid out of respondent's judgment and a lien was rendered in favor of respondent and against Groff and Eckelkamp. Both have appealed.
There was formerly a building that was used as a restaurant and filling station on the tract of land in question but it was destroyed by fire in February, 1948. On April 29, 1948, respondent entered into a written contract with the appellants to erect a new building on this site suitable for a restaurant and other related businesses. The contract provided that the building was to be built in accordance with plans which were to be drawn by George F. Hayden, architect. This contract also contained the following provisions:
"6. The Parties of the Second Part shall pay the Party of the First Part for the performance of the work under this agreement as follows: On the 8th and 23rd day of each month the Party of the First Part shall prepare a statement showing the amount paid out by the Party of the First Part for all labor incorporated in the work hereunder during the preceding period, and within three (3) days thereafter, the Parties of the Second Part shall pay to the Party of the First Part the amount of such statement, plus an amount equal to eight per cent (8%) of the amount of such statement to cover social security costs, workmen's compensation and liability insurance incidental to the performance of the work under this agreement.
"7. In addition to the aforementioned sum so paid for labor and at the same time the Parties of the Second Part shall pay to the Party of the First Part the amount of all statements for all materials and sub-contracts furnished or ordered by Party of the First Part, Parties of the Second Part or their agents or representatives, and on the 8th and 23rd of each month as aforesaid, the Party of the First Part shall add to the statement submitted to the Parties of the Second Part the value of all materials and sub-contracts incorporated into the work during the preceding period and the Parties of the Second Part shall pay to the Party of the First Part a sum of ten (10) per cent on the aggregate of the value of said material, labor and sub-contracts as a profit; and in addition thereto the Parties of the Second Part shall pay to the Party of the First Part the sum equal to four (4) per cent on the aggregate value of said labor and material and sub-contracts as an overhead expense."
On the date the contract was executed, the respondent began the construction of the building. At that time there was in existence only a pencil sketch of the building and it was estimated that it would cost approximately $65,000. However, after the plans were drawn by architect Hayden it was estimated the building would cost between $160,000 and $180,000.
As the work progressed the respondent submitted its statements for the cost of labor and the value of the building materials and supplies, plus the percentages provided for in the construction contract to appellants twice a month. These statements were paid until October 8, 1948. At that time Oliver Taetz discussed the non-payment of the statements with the appellants and then learned that the Groffs were the owners in fee of the land, and that on April 8, 1948, they had leased this land to Eckelkamp. He then found out that there was a disagreement between Groff and Eckelkamp about the lease and for that reason respondent had not been paid. Taetz was requested to furnish him with a segregation statement of certain items of labor and materials used in the construction from the beginning of the work to that time. Eckelkamp agreed to pay $50 for this clerical work. About the same time, respondent was requested to show on the statements presented to appellants the items ordered by Eckelkamp and the items ordered by Groff. Apparently this was requested for the purpose of keeping an account between Eckelkamp and Groff. After this request, respondent's statements [828] were all made out to the "New Diamonds Account." If the items shown were ordered by Eckelkamp, his name was also shown on the statement. The statements that showed items not ordered by Eckelkamp bore the name of "New Diamonds Account" and the name of Groff. It was not explained to Taetz why appellants wanted the statements made out in this manner. Respondent borrowed approximately $55,000 from the Bank of Washington to complete the building.
Respondent sublet the brick work in connection with the construction of the new Diamonds building to Thomas R. Pratt, a brick contractor from Farmington, Missouri, and the electrical work to J.D. Shepard, doing business as J.D. Shepard Radio and Electrical Services.
To shorten the record before the referee, it was stipulated by the parties to this action that the items of this account about which Oliver Taetz testified would be considered as if he had testified that they were used in the construction of the building, and the amount charged would be treated as if he had testified that the charge was reasonable. During the course of this opinion we will observe this stipulation and will not state that there is evidence that the various materials and labor were used in the construction, and will assume that there is evidence that the charge was reasonable.
Other necessary facts will be stated in the course of the opinion.
At the outset the respondent concedes that it struck from its statement in the petition the 10% and 4% charges on electrical equipment returned to J.D. Shepard, amounting to $282.47. However, this sum was inadvertently included in the judgment. Of course, the judgment must be reduced by that sum.
It is our duty on this appeal to review and consider de novo both the law and the evidence before us, even though the trial court approved the report of the referee with a few minor exceptions. Baerveldt Honig Construction Co. v. Dye Candy Co., Inc., 357 Mo. 1072, 212 S.W.2d 65.
The respondent contends that the building contract itself was abandoned by appellants shortly after respondent started the construction. This contention is based on the fact that there were many changes and additions to the building during the course of construction, increasing the cost tremendously. It is true that the building that was completed was quite different from the one discussed at the time the construction contract was executed. At that time it was estimated the cost of the building would be from $50,000 to $65,000, but after the plans had been drawn by the architect the cost of the building was estimated to be $160,000 to $180,000. However, it must be remembered that respondent did not agree to build this building for a firm price but on a percentage of its cost. In other words, the more the labor and materials cost, the more money respondent would get for constructing this building. This construction contract contemplated that there would be changes made. Paragraph 11 of the contract provides:
"11. The Parties of the Second Part [appellants] may, without invalidating this agreement, order extra work or make changes by adding to the work; it being understood however that contract percentages as to payments shall be the same as those provided for in Paragraphs Six (6) and Seven (7) hereof."
The respondent was not prejudiced by the changes; in fact, his percentage of profit was increased because of the changes made in the plans. Moreover, Taetz testified that he completed the construction of the building. Under these facts, we hold the construction contract was not abandoned by the appellants.
The cases of Baerveldt Honig Construction Co. v. Dye Candy Co., Inc., supra, Fuhler v. Gohman Levine Const. Co., 142 S.W.2d 482, Johnston v. Star Bucket Pump Company, 274 Mo. 414, 202 S.W. 1143, and Muench v. South Side National Bank, 251 838 S.W.2d 1, hold that if the owner prevents the contractor from completing his contract, then the contractor can recover in quantum [829] meruit for the reasonable value of labor, materials and contractor's service in the erection of the building, and is not limited to the price stated in the contract.
"But where, as here, an express contract has been fully performed on plaintiff's part, and nothing remains to be done under it but the payment of money by defendant, which is nothing more than the law would imply, plaintiff may declare specially on the contract, or generally in indebitatus assumpsit as for the quantum meruit, at his election. The plaintiff does not repudiate the contract nor seek to avoid it in indebitatus assumpsit as for the quantum meruit, but offers the contract in evidence and his proof of compliance with it to sustain his case. The agreed price, if there is an agreed price, becomes prima facie evidence of the reasonable value of the service. But plaintiff may not recover more than the agreed price. Stollings v. Sappington, 8 Mo. 118; Perles Stone v. Childs Co., 340 Mo. 1125, 104 S.W.2d 361; American Surety Co. v. Fruin-Bambrick Const. Co., 182 Mo. App. 667, 166 S.W. 333; 5 C.J. 1386, 1387, 1388." Fuldner v. Isaac T. Cook Co., 127 S.W.2d 726, l.c. 731. See, also, C.H. Robinson Co. v. Frissell, 132 S.W.2d 1049.
It is clear from the cases just cited that respondent may recover in quantum meruit for its services, notwithstanding there is a contract fixing the price to be paid for the services, but recovery may not exceed the contract price. There is no doubt that the present action is one in quantum meruit; in fact, there is no contention otherwise.
Both appellants contend that they were overcharged on the heating and plumbing items. Respondent carried in stock many items of plumbing which he obtained at wholesale because he was a licensed plumber. Respondent added 35% to the wholesale price of the plumbing and heating items, and thereafter 10% and 4% as provided by the construction contract. It is true that Taetz and another witness testified that a 35% increase over the wholesale price was reasonable, but we have just held that he could not recover any amount in excess of that which the construction contract provided. Appellants contend that under the contract respondent could add only 10% and 4% above what it cost him.
Respondent contends that the construction contract permits it to charge the reasonable value intead of the cost of the items. When the contract as a whole is construed, especially paragraphs 6 and 7, we conclude that respondent is entitled to add only 10% and 4% to the price it paid for the plumbing and heating items. In paragraph 6, we find "the Party of the First Part shall prepare a statement showing the amount paid out by the Party of the First Part for all labor incorporated in the work." In paragraph 7, the following language is used, "the Parties of the Second Part shall pay to the Party of the First Part a sum of ten (10) per cent on the aggregate of the value of said material, labor and sub-contracts as a profit." It seems to us this contract limits respondent's profits to 10% of the cost of material, labor and sub-contracts. To hold otherwise, respondent would receive two profits. We therefore hold that the plumbing and heating items should be reduced by the 35% charge above the wholesale price, and then the 10% and 4% should be added to the total amount of the heating and plumbing price that respondent paid for these items.
There was added to each hour paid the plumbing foreman 20 cents above his hourly rate of pay. To each hour the second plumber worked was added 15 cents in addition to his hourly rate of pay, and 10 cents was added to each hour the third plumber worked in addition to his regular hourly pay. But these amounts were not paid to these employees. They were retained by respondent for the use of trucks that were equipped with large tools and other equipment used to do heavy plumbing. There was testimony that these charges were reasonable but there was nothing in the construction contract that provided for such charges. These trucks were a part of the equipment of the contractor, and in the absence of an agreement to pay for the same these charges are not proper as it is [830] the duty of the contractor to "furnish all the tools and necessary appliances for the work contracted to be done." Shaw v. Beaumont Company, 88 N.J. Eq. 333, 102 A. 151, 2 A.L.R. 122. Therefore, these items should be deducted from the labor costs. Then the 10% and 4% should be added to the total labor items for plumbing and heating that remains after these deductions are made.
The appellants contend that the following item charged on the account, "Final payment on account Thos. R. Pratt, Bricklaying Contractor — — — $4,917.48," is insufficient to sustain either a personal judgment or a lien.
The account which the mechanic's lien law contemplates is such as fairly apprises the owner and the public of the nature and amount of the demand asserted as a lien. In determining if it does fairly apprise the owner and the public of the nature and amount demanded, the lien account must be considered as a whole. Mitchell Planing Mill Co. v. Allison, 138 Mo. 50, 40 S.W. 118, 60 Am. St. Rep. 544; Leach v. Bopp, 223 Mo. App. 254, 12 S.W.2d 512.
When this item is examined in connection with the entire lien account filed, it would be concluded that Thos. R. Pratt had a contract to do the brick work necessary for the construction, that other items showing the price of brick and the amount paid for labor in connection with the brick was paid by respondent to this subcontractor, and that there was a balance of $4,917.48 due the subcontractor. We hold that this item would fairly apprise the owners and the public what was contained in it. It is not subject to the criticism of appellants that it is a "lumping item."
Appellants contend the items showing that the bricklayers were paid $3 a day for board and room are not subject to a lien. The evidence shows that there is a union regulation that bricklayers who work as far away from home as these bricklayers did must be furnished their board and room. As we view this contention, we think that under the facts before us their board and room is as much a part of their daily pay as the cash these bricklayers received for their day's work.
This exact question was before the Iowa Supreme Court in the case of Crane Co. v. Westerman, 8 N.W.2d 412. That court held that inasmuch as the board and room was part of the contract of employment that it was a lienable item. We hold this assignment is without merit.
It is true respondent failed to introduce in evidence the written contract with Pratt for the brick work. There was no objection that this oral testimony was not the best evidence. We cannot see where there could be drawn any unfavorable inference because the written contract was not introduced in evidence. Moreover, the written contract was only collaterally involved in this action and it was not necessary to introduce it in evidence. 20 Am.Jur. 367, sec. 406.
Appellant Groff contends that the item designated, "Work, materials and labor in installing cement coping as per contract," amounting to $539.60, should not have been allowed as it was defective, and the court erred in allowing that item. Groff did file a motion to make certain items in the complaint more definite and certain, but this item was not mentioned in that motion. It is fair to assume that both appellants were satisfied with this allegation and that the allegation fairly apprised them of the nature and extent of the work and the kind of materials entering into these items. This is especially true when this item is considered with the lien statement as a whole. We think this item is a "substantial compliance with all the requirements of the statute, according to its reasonable intent." Hanenkamp v. Hagedorn, Mo. App., 110 S.W.2d 826, l.c. 829.
Appellant Groff contends that the trial court erred in permitting recovery of a balance of $4,558.29 of the separate account of respondent for items furnished appellant Eckelkamp. The record does not support such contention. As previously stated, in October, 1948, Eckelkamp requested Taetz to furnish him with a segregation of certain items from the beginning [831] of the work to that time, and agreed to pay $50 for the clerical work. (Of course, this $50 is a personal debt of Eckelkamp.) We have already shown how the items after that date were to be designated. Both Groff and Eckelkamp received a statement at each statement period named in the construction contract. Evidently, the appellants wanted these items separated because of some understanding between them. It may have been because of the lease agreement. Taetz testified that at this time he learned for the first time that Eckelkamp had only a lease on this ground. There is nothing in the construction contract that would indicate any agreement that all appellants were not the owners of the fee. All appellants contracted for the construction of the building. In fact, in their briefs the Groffs admit that they and Eckelkamp were jointly erecting the building. It is not contended that the items represented by the $4,558.29 did not go into the building.
We hold that appellants Groff and Eckelkamp are jointly liable for all material and labor items that were used in the building they were jointly erecting. Berkshire Lumber Co. v. J.S. Chick Inv. Co., 170 Mo. App. 1, 155 S.W. 904.
For the reasons just stated, the balance due J.D. Shepard, the electrical subcontractor, of $2,027.26 is justly owed by both Groff and Eckelkamp. However, the trial court erred in allowing a credit of 10% on some electrical items that Shepard had not installed and were usable, and for which he gave credit on the account. The allowance of the amount of $433.08, which was a charge of 8% of the labor charge by Shepard of $5,413.50 for social security tax, compensation and liability insurance, under paragraph 6 of the construction contract, is improper because Shepard testified that he did not charge respondent with social security tax and that he did not carry any compensation or liability insurance. We do not think there is substantial evidence that this item was paid by respondent and it should not have been allowed.
As we read the record, there are certain electrical items that were not completely installed, for example, electrical controls for the heating system, but we are of the opinion the trial court properly included these and other similar items for the reason Shepard was prevented from completing their installation by the appellants on September 15, 1949.
Appellant Eckelkamp contends that a charge of $282.96 for fuel oil used to heat the building so that the plaster would not freeze before it dried and thereby be damaged or destroyed was not properly a lienable item. In order to maintain a lien for materials furnished, it is not necessary in all cases that such materials should actually have gone into the structure and form a part thereof. It is sufficient that their use was necessary, and they were, in fact, used or consumed in the building. Rapauno Chem. Co. v. G N Ry. Co., 59 Mo. App. 6. See, also, Hydraulic Press Brick Co. v. Green, 177 Mo. App. 308, 164 S.W. 250.
We therefore hold this item for heating oil was properly a lienable item. For the same reason there are other small items that were necessary for use in the construction that we will not enumerate, for example, brushes and steel wool, that the trial court properly allowed as lienable. However, gravel that was used by Eckelkamp across the highway was not a proper charge in this account.
Appellant Eckelkamp contends that the account shows that one Crane Company Fitzgibbon steel boiler for oil, D.M. 61, was charged twice. This charge was made prior to the time the statements showed who ordered the particular work done. Groff did not believe that two boilers were needed and refused to let the second one be installed. The account was then credited as paid and charged to Eckelkamp only. It is true that about this time Eckelkamp paid $2,500 to respondent but that sum was credited on the running account and not for this particular item. That is evidently what the trial court found. We defer to its ruling.
The agreed price is prima facie evidence of the reasonable value of the materials and labor rendered. Fuldner v. Cook, supra. Therefore, we think the trial court properly allowed respondent 10% as profit and 4% as overhead expense.
[832] It follows that the judgment should be reversed and remanded with directions to enter a new judgment in conformity with this opinion. All concur.