House Wrecking Co. v. Sonken

152 Mo. App. 458 | Mo. Ct. App. | 1911

ELLISON, J.-

This action is based on a written contract. The plaintiff recovered in the trial court.

It appears that the Boby Realty Company desired to erect a new building on ground occupied by old buildings and it contracted with defendants to remove them. Defendants then contracted with this plaintiff, as a wrecking and salvage company, to tear down the buildings and remove the material. The contract provided that the work should be done within thirteen days, including Sundays, from the time plaintiff obtained full possession, and that if plaintiff would complete the work in less time, defendants, would pay fifty dollars for each day saved, and that if the work was not done within the time plaintiff would pay defendants fifty dollars for each day over. The evidence tended to show that plaintiff engaged a large force and completed the work in two days, which was eleven days less than the time allotted, and it therefore claims five hundred and fifty dollars under the contract.

The first objection taken by defendants is to the petition, the ground being that it pleads the contract by merely copying it, instead of stating its legal effect. This objection is founded upon a misapprehension of the petition. It is true that part of the contract in controversy is copied into the petition; but its legal effect, or intendment, is likewise well pleaded in addition to the copy. As a whole, the petition contains a plain statement of plaintiff’s cause of action, and that is all that is required.

It appears that there were tenants in the old buildings and plaintiff could not get complete possession. The Roby Company was quite anxious to get the ground cleared so- that it could begin the new building. Matters could be expedited if plaintiff could go into parts of the buildings which were vacated and begin taking out windows, doors, etc.; but it was not willing to do this for fear it would be taken as the beginning of the work under the contract and that the time limit would be counted from the time thus entered into a part of the buildings. An unsigned written memorandum was therefore drawn up to the effect that plaintiff could enter into that part of the premises vacated and start the work of dismantling before complete possession could be had and that this should not be construed as obtaining possession as provided in the contract, nor as the beginning of the work, so as to start the time running against plaintiff for its completion. In other words as, under the cóntract, time was not to begin to run against plaintiff until it was put in complete possession of the entire premises and thereby enabled to use its full force on any part of the premises without delay or hindrance, this understanding was had to assure plaintiff that his temporary entrance on a part of the premises should not be construed to be the possession mentioned in the contract so as to start the time against him. Defendants insist that this was a modification of the contract and that plaintiff’s action should have been founded on the contract as modified, instead of its original form; and in support of this, we are cited to Lanitz v. King, 93 Mo. l. c. 519; Koons v. Car Company, 203 Mo. l. c. 259. There is no doubt of the correctness of the legal proposition, but the question is, was the original contract changed or modified? We think not. We think the subsequent written memorandum was merely a precautionary statement of the true meaning of the contract as understood by the parties. The contract read that the work was to be performed within thirteen days “after full and complete possession of the premises has been delivered;” and, so as to avoid any dispute afterwards, as to plaintiff entering into part possession and beginning work, a written understanding of the parties was draivn up. It was not a change of the original contract.

But it is said the court erred in admitting the memorandum in evidence as it was unsigned by the parties and was binding upon ño one. The testimony however tended to show that it was handed to plaintiff by defendants as a statement of what the contract was urderstood to mean. Certainly then it was competent as against defendants at the trial.

It seems that some of the instructions offered by the defendants were refused and that they were then lost. Defendants applied to have them restored from memory of those who knew their contents. The court-after a hearing refused the application. Some question is made by plaintiff as to defendant’s right to restore them in the manner attempted, but we pass that by, for the reason that the manner presented as the instructions sought to be restored shows they were properly refused. One of them is practically a duplicate of one which was given; and the others were not good under the views expressed in this opinion on the subject of modification of the contract.

The instructions given for plaintiff and for defendants, together, presented the' issue to the jury fully so that there is no reason to suppose there was any misunderstanding.

We do not regard the point made as to the contract being penal as well taken. The evidence showed conditions which made the provision a reasonable one, and one intended by the parties to be enforced. The owner was very desirous of starting new and expensive buildings and the plaintiff, in order to finish the work in a short time, made extensive and expensive preparations therefor.

There is no ground for our interference, and hence we affirm the judgment.

All concur.