*1 COURT OF SUPREME Brаdbury v. Crites. a proof makes excluding offered Tlie error necessary. show considerations The same trial new prove permitted to defendant trial should have court to show which he offered fears, for the reasons his wife’s taking pistol purchasing out it and as the reason practice engage and country it into the Unexplained operation. evi- with its familiarize his wife deadly weapon possession the time at dence materially place shooting influenced doubtless and shooting jury finding mali- was done its ciously. assignments made in the brief error are other
There clearly They such character of defendant. are upon questions a retrial and need arise same will not be considered. testimony by excluding de- offered
For the error in judgment remanded the cause fendant the reversed and All for another trial. concur. F.
E. v. H. and UNITED H. BRADBURY CRITES COMPANY, FIDELITY & STATES GUARANTY Appellants. Two, February 26,
Division 1926. Appellate Action Law: REFERENCE: at Substantial Evidence: 1. Practice. his A suit a contractor the subcontractor and damages for breach of contract abandonment law; it,is if referred to a referee to take work is an action court, report testimony report his is confirmed judgment therewith, is rendered in accordance the court occupy court, findings fact, status confirmed the same jury, appeal and will if as the verdict of not be disturbed supported evidence. substantial Report: Subsequent Supplemental At Term. --: It is not error supplemental report permit term of to file a at a court the referee original report filed, subsequent at which the where to the term report oversight, referee, through and failed some overlooked report simply him, supplemental proceedings before OCTOBER TERM, 1925. supplied omissions, appellants (a) timely those ob- made no jections filing; (b) complain untimely filing to its did not of its trial, (c) in their they objections motion for a new filed reports judgment both which were considered before was entered. *2 Improvement: 3. DAMAGES: Breach of by Cоntract: Public Retention n Contractorof Ten Per Cent from Protection Amount Due Subcontrac- tor. city Plaintiff had a contract with the for the construction of a storage basin, by city per which the was to retain ten cent of the payment. estimated value of the work done at each installment He entered into contract with defendant to do the concrete work price, at a plain- named in accordance with the terms set out city plans tiff’s specifications contract with the and the and detailed, surety company therein plaintiff and a executed to a performance agreement. bond for the faithful of the subcontractor’s payment, At the first installment the from contractor received the the correct estimate of the value of the the work done subcontractor, per cent, less ten and turned over the entire .amount subcontractor; installment, to the at the next the contractor re- again ceived from thе the estimated value done of the work subcontractor, per cent, less ten and turned over the sub- amount, per thereof, contractor the less ten cent and less ten per paid upon pre- cent of the amount to the subcontractor vious estimate. The subcontractor contended that he was en- paid by titled to the entire amount to the contractor estimates, disputed right and both of the contractor per retain ten cent of the estimated value of his work until fully performed, only ninety per work was and because cent estimated value of the work done him and received paid the contractor was to him claimed that the contract with quit work, breached, him was and and the contractor took over completed it, the concrete work and and then sued the subcontractor company damages. The contract between the con- point. Held, and the subcontractor obscure on the tractor plаintiff subcontractor breached the is en- damages recover of his titled to the amount the subcontractor surety company. 767, 873, Appeal Error, J., p. New; 863, 3 n. 31 C. Section Section 28; 1585, p. 1409, X, 2865, 894, p. 967, n. References, 42; p. 4 n. Section C. Section n. Contracts, X, 56; 986, p. 780, 894, p. 895, 13 C. Section n. n. 57. n. 39. Tender, Cyc., p. Cyc., p. 847, Cyc., p. 112, 178, Principal 38 n. 6. n. 20 34 n. 6. New; p. 138, Surety, n. 32 Appeal from Jackson Circuit Court.—Hon. Charles R. Judge.
Pence, 696 SUPREME COURT MISSOURI, OE Affirmed. appellant & F. E. H. B. Crites;
Davis Woodruff Guaranty appellant Fidelity Ball for & United States Company.
(1) permitting file erred in the referee to court report” “supplemental subsequent at a term so-called filing original report. court The court exceptions original 53 should have sustained report to the exceptions were failure referee, which complete report. Chap. make a Art. 14 12, referee to Bradbury’s (2) 1919; R. S. R. S. 1919. Sec. failure under the second estimate constituted justified quitting breach work. Chimney v. 833; Miller, 384; 9 C. J. Bean Mo. Weber Paper 143; 199 S. Carlin v. W. Const. v. Co., Co. Co. Stone *3 Fidelity 241 S. v. Co., 545; Fed. U. Co. Contr. 263 Co., Fed. (3) absolutely support the 283. The fails evidence to allegation pеtition finding of the amended the quit referee and the that defendant Crites abandoned August exceptions on construction work the the and finding referee have of the should been sustained (4) Bradbury the trial court. Before to to is entitled recovery petition appear on it must his his offer legal pay under the second estimate was a clear $2781.80 under terms of the written on. tender contract sued 833; 13 C. 9 C. 662; J. J. on 32, Williston sec. Contracts, particularly Browning seq., Ry. 882; Co., et and Sec. v. App. 143; Sexton, 188 W. v. 142 Mo. S. Curtis Cor- 179; App. Mfg. .151Mo. v. 546; nett v. Best, Gerle Silk 57 Co., Fargo Page, R. & 61; J. L. 30 L. A. 432, N. Co. Wells, v. (N. S.) (5) 48 3 R. A. and 74, Ore. L. note. The pay under offer $2781.80 second esti- justification (6) finds mate no the written contract. support finding The evidence does of the referee the 19th that at conference Crites refused go agree ahead work with unless would (7) support pay The for the steel. evidence does not 1925. 697 TERM, obligated finding referee that of the Crites re-inforcing concrete for the that went into the steel support (8) referee’s work. Thе evidence does not finding against on his Under counterclaim. judgment against evidence entitled Crites is August, day interest 21st from the $6856.05 (9) judgment report The of the referee and the support finding agreements be- of it is based on a entirely dif- tween and Crites outside consequently ferent from written contract on, sued following the court erred in recommendations rendering judgment against prin- referee and Crites, the cipal, Fidelity particularly United States Guaranty Company, on. bond sued v. Woodruff 16 Ann. First Schultz, 346; Nat. Bank Cas. Fidelity v. 8 Ann. Co., Cas. 335; Ala. 241,145 Prairie State Natl. Bank v. United 164 U. States, 227; S. American Bonding Lyons v.Co. Pueblo Inv. 10Ann. Cas. v. Co., 357; . Kitchell, 37 Ann. 671; Cas. Reissaus v. Mo. 138 Whites, App. App. 135; School District v. 134 Mo. Green, 421; Realty Evans v. 125 Mo. Graden, 72; Blanke v. Bros. Co. Surety American Co., 247 797; S. Cochran Co., W. v. Ins. (10) S. W. Martin 1011; v. Ins. Co., S. 380.W. refusing referee and the court erred in Instruc- below by appellant Guaranty refusing tion 1 asked Co., and in by appellant Instruction 1 asked Crites in the nature of produced demurrer to all the evidence heard and in the (11) Appellants case. Guaranty also assert, Co. its motion for a new trial its motion in arrest judgment, appellant motion a new *4 judgment deprived ap- the court trial, below its pellants, process (Mo. of “of them, each due law” Constitution, art. sec. 2, U. S. 30; Amend- Constitution, 1), impaired appellants’ right 14, ment sec. con- (U. tract 10), deprived S. Constitution, art. 1,-sec. appellants, said equal protection and each of them, of the (U. of the laws 1), S. Constitution, Amendment sec. meaning within the true and intent of said sections of said State Right and Federal Constitutions. to contract:
698 COURT MISSOURI, SUPREME OF Right sue: Co. v. 259 U. Cheek, Prudential Ins. S. Complied 434; v. Powder River Fed. U. Co., Lamb S. 1214; Bank, Abott v. 175 U. 409. Statutes, sec. S. Rosen&weig, McCoy Harry 1. Charles E. Grant respondent. II. Hoivard for Appellants’ objection supplemen-
(1)
filing
to the
report by
having
tal
been taken at
referee,
filing,
their
either of
motions
time of
nor raised
ap-
judgment,
first on
new trial and
but raised
arrest
untimely
peal,
The court
is
and cannot now be heard.
jurisdiction
the time
jurisdic-
of the whole cause of action
had
supplemental report
filing
and had
requiring
certain
the referee to file
tion to make
order
before
which had been introduced
evidence
exhibits
requested
and certain declarations
of law
referee,
plaintiff.
(2) Appellants
the evidence
misconstrue
quit
After
Point 2.
Crites had
and abandoned
under their
August
performance
14th and fur-
contract on
his
August
repudiated
19th
his contract bn
there was
ther
obligation
on
to make tender
no
or
payment
estimate.
under
under the
Authorities
second
overwhelming
support
(3)
The evidence
4.
Point
finding
quit
that Crites
and abandoned
the referee’s
August
work on
14th. The referee’s
construction
approved
report
court
the circuit
court, and
finding,
being
sub-
than
there
more
disturb
cannot
finding.
support
Wilson,
State v.
evidence
stantial
quit
(4)
Crites had
and abandoned
After
232 W. S.
on
called for under
contract
his
the construction work
formally repudiated
August
after
by demanding
additional
19th
an
his contract
con-
of some
addition to his
$8,000
for steel
proceed
refusing
price,
construction
tract
Bradbury paid for
contract unless
for in
work called
price,
no
the contract
there was
addition to
the steel in
any
any legal
obligation
make
tender of
App.
Surety
364;
Co.,
Natl.
Mo.
Ramlose v.
amount.
*5
699
TERM, 1925.
Lyons,
v.
App. 535;
147 Mo.
Holden
Co.,
Laswell v. Handle
Kuhlman v.
Lamb, 26 111.
165;
396;
175 M'o.
v.
App.
Smith
App.
41
129
Harwood v.
Mo.
188;
Diemer,
"Wielen,
Iowa,
Aaron
Co. v.
107;
Deichman v.
49 Mo.
Fibre
48;
Deichman,
of Brad-
The offer
(5)
176 Mo.
26.
Co.,
App.
Poultry
pay
bury to
and his
offer
pay $2,781.80,
further
deducted, was
additional
ten
which had been
per cent
for payment
the contract
compliance with
terms
obliga-
no
though
under the second
there was
estimate,
un-
payment
tion on
make tender of
pay or
work on
quit
second estimate
der
after
19th.
on the
contract
formally
repudiated his
rest
judgment
and the
report
referee
(6)
of which
contract
upon
on,
performance
sued
agreements
other
Guaranty
no
Company guaranteed,
268
Co.,
v.
& Elev.
are
Mill
involved. Bank of Commerce
Lack-
App. 50;
Mo.
547;
Surety Co.,
Mo.
ex rel. v.
State
There are no con-
land v.
Bradbury v. Orites. integral part govern was made an tlie Orites him; contract was to Orites city, as he under the *6 Grites, received from the plaintiff. (Both latter’s contract the Orites and with petition.) are in contracts set out said alleged prior It is that, to the execution of the Grites surety agreed plaintiff the latter to furnish performance requirements and, bond for faithful July principal, on 14, and the United 1919, Orites, as- Fidelity Company, surety, Surety & as delivered States Bradbury paid a bond for which $20,000, on Surety premium; that the terms of said bond, agreed Company indemnify Bradbury due- from loss perform (This contract. failure of Orites to bond is petition.) set out in the furnished the That equipment paid, in the contract; mentioned Orites that he proper payments pay, within the offered to all time, complied due and that he had with all terms Grites, -of purchased in due contract; that time Orites Orites sand, and assembled at the site of the basin, cement, rock, necessary equipment; steel and othеr materials and that employed began wrongfully he labor and but build, abandoned said work on or since 14, 1919, about proceed which he has refused time, with said that work; City, August gave Bradbury notice 20, 1919, Kansas under Article to remove 3 of the that said contract; Orites, given due notice of the above was surety; thereafter took over the that com- work, pleted doing it in accordance contract and, necessarily expended certain that the reason- so, sums; done, able value of the labor and the materials work proper giving bal- after left a furnished, which, credits, plaintiff ac- $21,786.76, ance due to as detailed in an covering petition, attached an exhibit to the count, thirty-one petition prayer pages. The concludes .with a judgment against defendant Orites the sum judgment against $20,000, said $21,786.76, etc. TERM, defendant answer and counterclaim of
The amended plaintiff made P. H. that substance, admits, City set out contract with Kansas aforesaid May petition. 29, or about amended He admits that on plaintiff in- the contract described he and executed necessary petition. procured mate- He admits he that plain began reinforced rials and to construct that avers for in said contract. He concrete called work until or about he construction work continued such day August, quit 1919; 14th he and abandon did quit said work nor he ever and abandon date, on said did voluntarily. plaintiff the same He denies that continued payments to meet the due defendant under the con- plaintiff complied with tract aforesaid, denies of said contract. He terms conditions avers upon plaintiff repeated failed and demands refused, after *7 by payments make him un- him this to the due defendant, by der said refusal fail- contract; that reason said and payments, compelled ure to make such this defendant was the work; and construction to did discontinue such that requirements plaintiff, city notice to men- the by, petition, resulted tioned the were occasioned and by from, the discontinuance of said construction work de- right do, fendant as had the to because of the refusal he plaintiff comply payments his make and to said allega- with this defendant. He all contract denied except specifically petition, those to tions of the admitted be true. count of answer and
The second said counterclaim plaintiff’s city contract with the his con- and refers May dated defendant, tract with this then 27, He monthly providing contract cites section 7 by proportional pay- on and work, estimates prices on the ments to Bradbury proposal, based schedule of per
less a deduction of ten cent held protection against by as a less than full back a Bradbury. performance by It averred that under this large provision, after amount of work had been done a City, August an defendant, 2, Kansas made 1919, this COURT OF SUPREME including covering Crites, work estimate work done, Brad- paid therewith; that in accordance pay bury request, this defendant refused, after portion payable within proportion work, of the for his pay wrongfully defend- offered to estimate, foregoing, this of the sum; a smaller that ant reason plaintiff but notified discontinued work, defendant plaintiff pay proceed if with same would him would he plaintiff refused contract; with their accordance pay let Crites continue and refused to aforesaid plaintiff work, over the materials work; took job, including supplies on the his furnished damages equipment. He the sum tools and claimed in statement said attached to answer. '$6,856.05, shown Fidelity Guaranty Company & filed The United States peti- denying allegations of the answer, an amended adopted amended answer of defendant tion, Crites. reply in his to the amended answer
Plaintiff, Guaranty allegations Company, denied all the contained knowledge alleged, further without his therein. He wrongfully discontinued defendant Crites consent, plaintiff: 14, contract with under his work times since said date has refused com- all plete plaintiff, in addition same, unless price called for in said $34,000 would the full agree rep- further sum of $7,815.04, also Crites a purchased resenting of steel which had been the cost on his own behalf, under contract defendant *8 part necessary plaintiff, of the materials in the with as said reinforced concrete work, construction of etc. Plain- separate reply a to the tiff filed similar amended answer Crites. of defendant v plaintiff, March on motion of 25, 1921, cause On Assignment order of Division of Jackson was, .the City, County Court, at Circuit Kansas referred Missouri, provisions Schwind, as under referee, to Mr. Milton Chapter NIY, Missouri, Article Revised Statutes 12, TERM, 1925. having February referee, On the above after 25,1922, testimony, in this filed in the circuit etc., cause, heard report, his is set out in the court which abstract. appears among other docu- the record
It that, by plaintiff, con- offered in evidence were three ments prepared by first, tracts. The was defendant Crites signed May plain- dated either 27,1919, but plaintiff, tiff or Crites. It was delivered latter to parties. proposed and refers to the contract between said specifications The was the between second, contract plaintiff City covering question. the work in Kansas plaintiff The was the contract between and defend- third, relating ant said work. foregoing
The contracts offered in evidence were running through plaintiff, testimony record of pages relating was taken the referee to the issues be- parties report tween the hereto. The referee made his clearly the circuit and, court as it sets out issues be- parties, findings respect tween the to same, we part report, here set out a of said a statement of the to-wit: case,
‘‘Statement. required “The which are issues to be determined will following be stated connection with narrative Bradhury the facts. obtained a contract from the large storage part build a basin in northeast city. large quantity work entailed the removal of a earth, well as the of extensive construction concrete city’s foundations and walls. The contract with incorporated plans specifications amply details, ex- hibiting requirements completed of structure. personally intended to do all ex- the work of negotiations but entered into cavation, with Crites to do portion the concrete of the construction. The contract May signed July dated 27th and 14th, is the written evi- agreement. Long prior dence of sign- their to the actual ing appears actively of the contract Crites to have been engaged work. Under construction Clause ia of7 *9 COURT OF
704 SUPREME Bradbury v. Crites. July city, dated was made the contract an estimate commencement It 9,1919. covered the work including done both the work covered June Bradbury Bradbury. payable to The amount per The $10,826.44. cent was after the proportion the ten deduction of sand representing cement, rock, of this sum . per cent, was $8494.59. after deduction of ten steel, amounting to pounds, 251,505 Thе steel item was for per Another ten cent. of the before deduction $7815.04, yards wall, of toe was 20.5 cubic item in the estimate amounting, per deducting On cent, the ten to $41.98. after Bradbury paid to of this Crites $8536.- the basis estimate, city paid for Crites’s work. which was the amount the required making payment, a bond. he of Crites Before bond to whether was The difference between them as a giving Bradbury pay- merged given it, in the be act ing premium. Crites contract,, signing delivery first bond, of the execution and July 14th. all transactions of were provides city that a sub- contract of the “Section city Bradbury more be no contractor under shall to' Bradbury’s, employee than an city request any employee of his on would remove neglect duty incompetency, or or when- misconduct, for sub-contractor) employee (or any ever such for reason city. acceptable That to the contract also should not be pros- (Section 9) provides fail that if shall city force, -sufficient should havе ecute the work with option sup- to serve notice forthwith ply necessary in default and if he continued force, days notice, ten ‘after service of should such supply option have either to force nec- additional payments essary, deducting then the cost from or there- Bradbury, after to due to or to forfeit con- become work. tract and take over the incorporated contract with
“The documents clearly contemplates that therein deliver to- completed material basin, as well as labor, stipulated price paid. therein be TERM, involving, 19th its “On an interview, important of- ramifications, issues herein, occurred at the *10 required fice of a which of further a state- narrative pertinent ment of facts. ‘‘ August Bradbury city On its delivered 18th, to covering period August second estimate to con- 1st for only, yards plain crete work as follows: 48.95 of cubic per leaving concrete, ten $489.50,less From cent, $440.55. city namely, this the deducted item for toe wаll, $41.- paid Bradbury by Bradbury 98, which had been to to leaving plain Crites the first estimate, on net due for con- yards crete also 390.34 cubic of con- $398.57, reinforced amounting crete wall, to From likewise this $7416.46. city there was a of deduction credits of to amounts paid on the first estimate as follows: “Cement, .......................... $1369.94 '
Sand,.............................. 118.45 Rock,.............................. 135.00 Steel, .................. 1719.92 or a of total from which estimate indicated $3342.21, fact that the the first estimate deducted being per leaving the ten net $334.33, cent, a credit previously claimed account of these items paid leaving of $3008.98, a balance due for reinforced subject per of concrete $4407.48, to be reduced the ten cent, or which in- $3966.71, sum added to the $398.57, Bradbury dicated the sum due to at This sum $4365.28. paid August day was about on which quit Crites under his work for the reason, says, repeated upon Bradbury, he that after demands payments failed make latter and refused to due him. to return to the interview “Now 19th. attorney, McCoy, and his went office morning day. They of that on the took with them produced at interview a statement on the basis ready which was ar- $2781,80, way: at in rived Sup. Mo. —45. COURT OF SUPREME per yard yards at wall,
48.95 of toe $8.25 (the city’s figure
$10.00) making..................... $403.84 yards wall, at 390.34 $14.70 reinforced $19.00) yard per (the city’s figure was making’ ........................... $5378>.00 (less deduc- or total to Crites below) .............. tions noted $6141.84. payments Bradbury proposed to deduct From this amount July 14th, included in the check Crites $8536.57. wall cement, rock and toe sand, These items covered city, figures in the first estimate of the exact stated per deducting and restated as credits before the ten cent after deduc- estimate, claimed its second per given Brad- The item steel was tion cent. ten *11 bury’s all Crites at The total statement to $1719.92. including aggregated $3389.95, steel, the that of items, per retained Bradbury from by deducted the cent which ten city, arriving previously the thus at the true amount paid reducing which net credit to Crites, $3050.96, the to sum $6141.84, taken from made the the credit Crites Bradbury pro- and from this named sum $3090.88, posed last per retained a of ten cent be further deduction showing of the second estimate due to Crites out him, sum received him on the same $2781.80, the city, namely, estimate the $4365.28. given tes- in the of this
“The versions interview timony Bradbury Crites on behalf and behalf vary important particulars in con- hereinafter stated careful the reached me after nection conclusions with consideration of the evidence. Bradbury interview, wired
“At the the conclusion surety stopped company Crites had work that on the the proceed; due him and refused to that 18th, refused, been tendered and under second estimate had the pay for and that he claimed he was not to the steel. imperative pro- 'message that it was that work also stated August the 20th and asked for instructions. On ceed, Bradbury surety part that it declined take stated ap- Bradbury controversy Crites, which between and TERM, Vol.
peared dispute interpretation to be a tbe as to right Crites its and contract, waived to take over complete By Bradbury the contract. notice on Au- gust city days that for five claimed there been no city work done on the basin, that the understood stopped misunderstanding that work had because of some between attention called Crites, and city stating Section 9 of the that unless the work }jroceeded within the time fixed section, limit that day would take over the work. On same Bradbury, quoting provisions a letter to of Sec- stating tion 3 of its contract, had ad- quit required vised that Crites had him work, to remove proceed diligence, Grites, and with the work with due or would take work over under 9 of its Section August contract. On 21st, in a letter to surety, stated that he had received the two notices from city, enclosing copies, that he would forthwith August take over the work. On 21st, directed stating a letter to he had two received the city, notices from the on account of re- Crites’s proceed fusal to with the work, accordance copies notices, of which were attached to the Brad- letter, bury complete would take over and would work, damages. hold liable for the This letter was not delivered to Critеs, but to Mr. Davis, shortly law firm August & Davis Woodruff, who, after attorneys. 19th, were retained as his On *12 Bradbury, response 22nd, Crites wrote a letter to to stating the letter delivered to that he had Davis, was and ready proceed been at all times to the work when with payments lie received due him in accordance with the willing two estimates; that he was to submit the difference between them pay as to who should for the steel to arbitra- August to be had within a week tion, from date. On 23rd, Bradbury, stating Crites sent a letter to had that he city engineer learned the for the amount him due long Bradbury work on his paid the first estimate after had Bradbury, by Crites on tliat estimate, calculated as and that until not the amount did know 22nd he SUPREME COURT OF y.
Bradbury Crites. He the estimate. refers to for his work on allowed second city that and states the contract, 9 of the Section conld not take expiration until the of the over the work proceed ten-day if with work limit; time he offers to the previously paid renews his allowed, two estimates the to who betweеn them as arbitrate the difference offer to Bradbury response pay no to made the should for steel. taking completing as it, the work and these over letters, hereinafter stated. Bradbury’s testimony, hearing corroborated the
“At by McCoy, Au- the interview was that at Crites with objecting gust specifically the cor- without 19th, Crites, Bradbury which on the basis of rectness of the statement proposed pay estimate, the second noticed the Crites (less cent) per sum ten item steel of $1719.92 promptly he among stated that deductions,, (Crites) first steel. This was was not phase the On this heard of such had claim. plain- proceeded point where stated to the interview ly proceed unless his contention as he would that Bradbury. pro- He likewise was conceded the steel per ($309.08), cent of ten tested retention Bradbury’s response that to which was him, as paid tes- consented. Crites’s would be if that timony, two is in which he corroborated witnesses, chargeable with that his contention that McCoy suggеsted which outset, the steel was always saying his had been that assented, understanding in- and accorded his objected amount offered that he to the because tention; part paid for his much had not as it was dispute suggested as to the steel could work, he would arbitration; said take settled be part if difference between $2781.80 paid paid work were amount all days. a few To this refused assent, within interview terminated. *13 TERM; y.
Bradbury Crites. “IV. “(1) By obligated contract, bimself liis plain build all plans reinforced concrete work shown on the provided specifications in accord- city ance with $34,000. the conditions of the contract for may To build a concrete basin mean that the builder supply only the should both the labor and material or In labor. either The event, he could be said to build. question ambiguous. early term is arose hear- ing. testimony I believed, admitted which tended, as I plain Bradbury to make whether as between obligation the latter’s in- was to furnish the materials, cluding produce necessary well as the steel, labor, the result in namely, view, a concrete basin as defined contract. On the I evidence, find provision requiring par- Crites to the minds build, ties and that met, both meant and understood that Crites supply in the execution of the contract should the labor including gross sum materials, steel, at the stipulated. August I find that on dis- 14th, Crites “(2) operations
continued on the under basin his contract, operations that he did not thereafter resume thereunder, and that on 19th, his intention was not take up again and continue the work unless would concede claim that under their contract it was Brad- bury’s pay obligation reinforcing steel.
“(3) By Bradbury obligated the Crites pay himself Crites as received city, in accordance conditions contained contract. ‘£ provision, requires I As read this it payable performance $34,000 for full install payable ments. Each successive installment to Crites payable due when and re as soon as has ceived an installment from the on account оf work done Crites. SUPREME COURT OF
“By determined? what is the amount to he standard Bradbury payment from On first received Crites city. precise from the On amount received the latter propor- payment pay proposed Bradbury a the second to city ac- tion of on the same what he received from the had proportion count. $34,000 This relation to bore same per- partial performance full which the of bore to Crites According re- formance. to would method, Crites this payment each ceive full done at the date for the work being payment compensation, on of his total the basis overpaid underpaid. His contention neither nor Bradbury received all should receive that he city. August 19th. from the he So contended “(4) reference The matter is be determined to independently,U the fact think, to Bradbury paid payment. It on the first the full amount Viewing wholly is matter construction. the contract a terms and as a a construction warranted whole, its subject-matter, reason and accords busi- which obligated Bradbury pay himself is that to sense, ness installments as he received his installments, Crites in city, to relation from the the installments bear the same part compensation performed full which the date to performance. payment expect to full Men do not bore pay paid or in advance kind to to be for service city provisions here of the involved. Crites knew Bradbury. compensation paid and the total to be contract city say placing a unit value on To that the act the work embraced Crites, estimates made as periodic Bradbury, city payments basis for a arbitrary paid proportion Crites, should fix the would be proper give and not rational. the words It rather than an unreasonable con- contract reasonable used this The words admit of construction, struction. advantage gives party unfair it neither an over the puts under the limitation other. It same periodic Bradbury payments from as that under whiсh payments city. from the took his TERM,
“Y. “(1) By obligated the Crites contract, payment bimself to Crites as received city tbe in accordance -withtbe con- of tbe conditions tract.
“ (2) right Tbe contract saved to the tbe per payment Bradbury. to retain ten cent each On payments per tbe two made to it retained ten him, Bradbury, making cent. tbe first proposed payment, made no deduction. On tbe be second per to deduct ten cent. ‘‘(3) I find tbe fact to be
objected per to tbe retention of cent this ten *15 payment, Bradbury on the second that said be would pay per ten cent if would tbe consent. ‘‘ (4) theory It was the as in indicated bis testimony, per city that tbe cent ten retained was tbe per compensation, ten of bis protection against cent own con- therefore stituted that default which is admitted- ly object provisions. tbe sole of such While this accords Bradbury pay- with bis other claim that owed him on each city, Bradbury is, ment all bad from that received tbe It , my opinion, city in in view, an that tbe con- erroneous Brаdbury’s compensation, fixes tract tbe Crites whereas compensation. contract fixes Crites’s Tbe retention per protects against ten cent, to extent it less than performance, full have would to out total com- be tbe pensation By in contract, of tbe one default. tbe Crites Bradbury obligated pay bimself to Crites city received tbe with the accordance say, of tbe contract; that-is to conditions tbe condi- imposed by respect payments tions to Brad- bury Bradbury’s payments should attach to to Crites. percentage these One of was tbe retention conditions of a of tbe amount Tbe earned. words used the Crites con- tract warrant tbe reasonable construction position respect should be in a more favorable SUPREME COURT MISSOURI, OP periodic payments against Bradbnry Bradbnry than city. would all times be in as “(5) accordingly August I conclude that pay the offer of on the basis of statement presented, previously then indicated herein, constituted performance Bradbury’s part respect pay- full notwithstanding proposed per ments, he to retain ten cent of the amount such statement shown to be due.
“(6) my opinion, amply In however, the evidence warrants I conviction, find, so the contention Bradbury of Crites made that under then his contract was obligated pay for the steel out of his own thus funds, increasing by the cost of the steel which entered into compensation construction the total final to Crites, was and unalterable. “ (7) my opinion, In likewise, the evidence warrants and I conviction, so that the contention find, of Crites obligated then made that under his contract was him paid on each installment all that the for the work done final unalterable.
“VI. foregoing findings, “On basis of the and the con- placed upon which I structions have the Crites my conclusion is: “ (1) position That on 19th, assumed *16 respect pay- to the steel and the measure of Bradbury ment repu- due him from each amounted ato of Bradbury, diation the сontract between him and justified Bradbury taking completing over the work of storage city. basin under his contract with
“(2) That is entitled to recover Crites in this action the reasonable value of labor necessarily expended supplied materials in the busi- completing ness of the construction of the basin; less cer- tain credits deductions hereinafter indicated.
“(3) nothing That Crites should recover counterclaim. TEEM, OCTOBEE y. Crites.
“VIL “The sum in as I which, should re- find, following cover of I in the Crites arrive at manner: “ By (a) making certain additions to errors correct computation Bradbury’s in the petition. of the account attached to By “(b) making from ac- certain deductions count; and,
“(c) adding By certain credits which he omits give to Crites.
“1. to Correct Errors: Additions “(a) Under of date November the total 19th, computed $21.21, adding certain items at should be $51.21, $30.
“(b) September Under date 22nd, the total computed adding certain items should be $52.21, $58.21, $6.
“2. Deductions: “(a) item for rock, crushed 22nd to 10th, on evidence March should be in- for $6,304.37, subtracting stead of $6919, $604.63. “ (b) January Under date of 19th, an item of $5.40 subtracting not sustained is the evidence, $5.40. “(c) February Under date an 14th, item $1 not sustained subtracting is evidence, $1.
“(d) September Under date of an item for drayage copper subtracting disallowed, $2.50. “(e) charged personal services one-half of the time completing consumed in the con- computed tract, at the rate for full $300 time for four days, months, and three or There is $615. no evidence the amount of these or services, their reasonable value, subtracting and the item is disallowed, $615. “(f) Bradbury charged Crites with the an use of employed automobile time time the work. There nois evidence of the time for which the car or was used, *17 SUPREME COURT OF its use. This item is disallowed,
of the reasonable value of subtracting $88. Bradbury charged Crites one-half
“(g) complet- period work of officerent covered for subtracting ing item disallowed, the contract. This is $53.75. “ Bradbury charged (h) proportion of Crites with a Bradbury paid salary one of his em- which office subtracting ployees. is item disallowed, $180. This Additional Credits to Crites: “3. in the of of counterclaim contained second count
“The damages, stated in is for the sum answer Crites’s wrongful accruing because of the to Crites $6856.05, by Bradbury alleged, contract. breach, Bradbury breach contract. From the evidence did not hearing support at in the items me admitted incorporated statement in counter- in the enumerated taking Bradbury, in over the work I find claim, equip- materials, over certain tools and basin, took engine hoisting used a Crites, and concrete ment returned afterwards to Crites. As which were mixer, recovery Bradbury’s upon is an for account proper expended, credits, I less that in this conclude sums accounting given Bradbury should credits Crites Bradbury’s recovery. in reduction Total be allowed given by amount, in his account exclu- credits price, I find that ad- $1254.79. the contract sive Crites is entitled to: these credits, dition per “(a) feet lumber, for 24870 $40 Credit Bradbury’s lumber for He credit $531.88. thousand. for give credit $462.92. additional should “ (b) for in the sum of wire $13.65. Credit ‘‘(c) $21.75. nails the sum of for Credit “ stay (d,) sum for of $77.01. rods Credit expension joints “(e) the sum Credit felt $78.21.
“(f) gasoline in the sum $12.50. Credit Vol. TERM,
Bradbury v. Crites.
“ (g) for in Credit coal the of sum $11.65. “(h) paraffin Credit for oil in the sum of $5. “ (i) for Credit of cement the sum $228.75. sacks “ (j) (listed equipment the for Credit tools and $612.10) the sum
counterclaim at a total of of $588.
“(k) hoisting engine in Credit for rental of value the sum of $55. “ (1) the for mixer in Credit rental value of concrete
sum of $190.
“VIII. surety company “The contentions of the are: “(1) by its That it indemnified bond pecuniary resulting by from loss from the violation Crites of the terms which free am- Crites is from biguity requires only none the labor and Crites of the material incidental to the construction of basin; any by arrangements is it not bound to extraneous by the contract between which part latter assumed-to furnish or all the materials; accordingly, plaintiff’s petition stating import legal obligation of the Crites contract to be an all furnish the materials and labor is unsustained (2) Bradbury’s contract in evidence. That it was obli- gation city paid to Crites all that on account of the work of Crites. To sustain either con- surety liability tention would be to release the here- upon hypothesis, in, for either under the Brad- evidence, bury performance would be in default and could recover. “ my (a) It is conelusion'that the contract bonded required surety doing build the basin furnishing work and the materials. This I find to be meaning obligation of the Crites contract. is as as that broad of Crites. Both are bound ambiguous meaning
the tnie contract that mean- ing light competent evidence, is determined SUPREME COURT OF
“ payments (b) Bradbury full default of not in already fully by me. indicated due to reasons
“IX. ‘‘Recommendations. by'Bradbury petition, “The amount in his claimed $21,786.76. after deductions conceded him credits foregoing findings, In I add accordance by way items correction, subtract $36 $1540.28 adding sum of disallowed; and credits the $1744.- arrive in which $18,538.04, the net balance of sum 44,1 *19 judgment my be it is entered recommendation against plaintiff, Bradbury, H. favor of E. and F. H. Fidelity Guaranty & Com- and the United States Crites nothing pany, H. recover defendants; and that F. Crites on his counterclaim.” supplemental report by the
Thereafter a was made oversight, through referee certain which were, matters original report. Exceptions filed omitted from his were by appellants reports as shown overruled, as to and both by following judgment, 1923: March 6, dated
“Judgment. having heretofore “This cause been submitted original supplemental report court on the and filed herein by upon proofs heard referee, Hon. Schwind, Milton sup- by original said referee and filed his said and original plemental exceptions report, to said referee’s up- supplemental report by filed and and defendants, upon arguments of counsel on the briefs said several and duly having examined and con- and the court matters; being fully in the and now advised same, sidered the premises: ratify, respects approve and con- in all
“1. Doth findings and of of firm of conclusions law all of the fact herein. the referee by counterclaims made
“2. Doth find the issues Fidelity F. H. States defendants, and United TERM, Guaranty Company, plaintiff, and fávor of the and thereby. nothing said are defendants entitled to recover petition plaintiff’s “3. Doth find the issues made on plaintiff in favor of the and both of said defend- doth ants; find that defendants have breached the bond damages plaintiff’s sued on and doth assess herein, account of said breaches, follows: ‘£ moneys paid plaintiff On account out labor price ers and and materialmen excess the contract of all credits to en excess which defendant Crites was amounting titled, as found the referee, $18,538.04. exceptions ££4. Doth overrule each and all sup original filed the defendants to the referee’s and plemental report, rulings to which each court except. them, defendants and each them ££ Wherefore it the court ordered considered, adjudged nothing that the defendants their take plaintiff go discharged said counterclaims, hence day; plaintiff therefrom, without have and recover of and Fidelity H.F. defendants, United States Guaranty (a corporation) penalty Co. of their said bond; to-wit, the sum of and all $20,000, plaintiff of this costs and that suit, have execution for damages awarded to him as to-wit: For aforesaid, the sum of $18,538.04, for all of the of this suit.” costs
Separate motions a new trial and in arrest *20 judgment by were filed defendants overruled. There- appeal granted after an said court. to this defendants may important Such other matters be deemed will opinion. be in considered the testimony
I. This is an action at law, in which the by reported was taken a referee, court, the confirmed by judgment the latter, rendered in accordance report of recommendations the referee. The find- mac^e the referee and confirmed AppeUate judgment occupy of the circuit court, Practice. appeal same status on the verdict of a findings jury, supported will be such if disturbed, 718 COURT OE SUPREME & Mor Cloak Co. v. evidence. Suit substantial [Kline 100; ex l. c. 240 S. W. l. c. State rel. Saline 293 Mo. ris, 494, 143; W. Roloson v. 288 Mo. 232 S. l. c. Wilson, v.Co. 203 974-5; Johnston v. Star c. 528, 274 Mo. l. S. W. Riggs, Peo 424; Mo. l. c. State ex rel. v. Pump Co., Bucket Mo. c. l. Co., 202.] Ice ple’s that the trial court by appellants It is
II. contended sup- referee to file his error in permitting committed term fil- at a of court to the report subsequent plemental original report. ing jurisdiction subject- over circuit court
The likewise over de- persons of matter of the cause, through having referee. The referee, fendant and of report and failed to some the pro- overlooked oversight him, permitted was properly before ceedings in case These missing portion of same. the court supply matter, of above complain in no position defendants are made no First, they timely because reasons; for several Second, same. because objection filing legal error of this charac- any alleged they not complain do a trial. because Third, they in new ter, their motions of the referee which reports were objections to filed both cause, was entered judgment determined before subject are now the review this court, and which The above of error assignment if is presented. properly overruled. merit and without appellants’ It is claimed under
III. second conten- Authorities,” their “Points that: tion of failure “Bradbury’s to' Crites under the second a breach Bradbury, constituted and justified estimate ’’ work. quitting assignment simply above the statement No is set testimony out legal support conclusion. are we referred contention, part nor any said abstract record where anything 850 page relating found. can be Under this well-established matter it is court, province not our to search this rulings the correctness of record to determine above voluminous *21 TERM, Vol. 719 v. 256 and complaint. Hastain, l. c. S. W. 753 [Barnett cited; State v. 252 S. l. cases W. c. Yates, 644; School Dist. v. & Maloney Phoenix Land 249 S. Imp. Co., 54; W. l. c. Rys. v. 237 512; United S. W. l. c. Co., Gilliland, v. Nevins S, 290 l. c. 234 l. c. 300-1, 820; Mo. 220 W. State v. Stenzel, c. S. l. v. 884; Hayes 264; W. S. McLaughlin, 217 W. l. c. Christine v. 280 Mo. l. Luyties, 60; c. 217 S. W. c. 431, l. Whitsett, State 232 l. c. v. Mo. 134 529-30, 555; S. W. State v. 203 Mo. l. c. Holden, S. W. Aside 490.] the plaintiff from the foregoing’, produced sub abundant, stantial evidence the controverting above contention, plaintiff finding the referee found for on this issue. The referee this is subject the ap conclusive against authorities cited under the under pellants, proposition one supra.
IY. Under proposition 3 their Au- “Points it that: thorities,” alleged is “The absolutely evidence fails the support allegation the amended petition, the finding referee, that defendant Crites quit construction work abandoned the this exceptions finding of the referee should ’’ have been sustained the trial court. assignment, like one in
This the preceding para- simply legal is graph, conclusion, set out does facts relied or show on, they where be may found in records. It ignores direct, substantial offered testimony and sustained plaintiff referee. The finding referee, which was confirmed if court, sustained evidence, is conclusive by substantial here on this appeal. It province is not court pass on weight simply but to determine evidence, whethеr there was evidence substantial sustaining finding the referee entered. above judgment assignment of error overruled. accordingly five, Propositions four, six and ap- Y. seven, under ’ Authorities,” “Points
pellants read as follows: SUPREME COURT OF *22 Bradbury v. Crites. ‘‘ recovery Ms 4. Before is entitled to appear pay petition iin- it that Ms offer to must $2781.80 legal estimate under der the second was a clear tender the terms of the written contract sued on. ‘‘ pay of under the 5. The offer $2781.80 justification in con- finds no second estimate written tract. finding support
“6. does not The evidence at the conference on the 19th referee that go ahead with Crites refused to the work.unless agree pay for the would steel. n support finding does not “7. The evidence obligated re- was the referee that Crites inforcing went into the concrete steel that work.”- propositions said under three we have
What applies equal supra opinion of the with each four force to assignments. plaintiff of the above offered substan- suppоrting testimony matters to the tial contention assignments and in in above found referred to -referee assignments these issues. Said his favor on are accord- ingly overruled. proposition appellants’ under 8 It
VI. is claimed support : “The evidence does not referee’s brief finding against on his counterclaim. Under the against Bradbury judgment entitled to evidence August, day interest the 21st for $6856.05 1919.” respondent respect in found for
The referee to above finding is sustained and his substantial evi- matters, plaintiff. assignment in This behalf offered dence for the other overruled reasons also be heretofore should stated. proposition Appellants- under their contend,
VII. report judgment of the referee and the “The in 9, that: finding agreements support is based between of it entirely outside of and different and Crites TERM, consequently the sued on, -written contract from the ref- following in the recommendations court erred principal, against judgment rendering eree Fidelity particularly States United and Guaranty Company, on.” sued surety on bond offered evidence substantial There abundant was findings plaintiff support recom of the referee’s respect com-' the court matter and mendations above confirming here we have same. What mitted no error assignment. disposed applies It to this tofore said report paragraph properly referee’s under *23 properly respect in view held, The referee to same. finding, not released, was above that the against defendants, judgment both entered should be Morris, Cloak & Suit Co. v. [Kline which was done. Co, v. ex rel. Saline State 100; Mo. l. c. 240 S. W. 496-7, 143.] 232 S. W. 336-7, c. Wilson, Mo. l. reading of coun- After the record and briefs
VIII. produced plaintiff substantial evidence we hold that sel, on all the material findings of that the case; issues judgment well the court thereon are the referee supported by no error which evidence; substantial complain appellants legally were can committed during progress on the record trial; of the them right party judgment for the as it stands, Higbee, accordingly concurs. G., affirmed. opinion foregoing of Raieey,
PER CURIAM: The opinion adopted All of the court. is C., judges concur. Sup
312 Mo. —46.