Springfield Court of Appeals, Missouri
July 23, 1970
TITUS, Presiding Judge.
Plaintiffs are partners engaged in the bulldozing business and defendants, husband and wife, are owners of the realty where plaintiffs undertook to ply their trade. Part of plaintiffs' services were performed on an hourly basis and part were rendered under a $1200 lump-sum oral contract. Defendants have appealed from the judgment entered in this court-tried case which awarded plaintiffs $1587 on their petition and defendants $563.10 on their counterclaim. After off-setting the awards, a net judgment was entered for plaintiffs in the sum of $1023.90. The lone point made by defendants on appeal is that. the trial court "erred by applying an improper measure of damages, that is, by allowing [plaintiffs] to recover on the contract and also allowing [defendants] to recover. on the oral contract; the correct measure of damages should have been the boss of the bargain and applied in favor of [defendants]." Three cases dealing with total failure of performance are cited to this point, namely, Norman v. Vandenberg, 157 Mo.App. 488, 138 S.W. 47 ; Simons v. Wittmann, 113 Mo.App. 357, 88 S.W. 791; Samuels v. Illinois Fire Insurance Company, Mo.App., 354 S.W.2d 352. The $1587 gross judgment for plaintiffs included $387 found to, be due them for services performed on an hourly basis. Since defendants, as evidenced by their appeal assignment, do not complain of that portion of the judgment, we will disregard the dispute involving, hourly work and proceed as if the contract work was the only matter in-
[1, 2] Oral arguments by both parties are encouraged by appellate courts because they often assist the court to a fuller understanding of .the theories of the parties and the issues on appeal. Quinn v. St. Louis Public Service Company, Mo., 318 S.W.2d 316, 319(2) ; Johnson v. Fogertey Bldg. Co., Mo.App., 194 S.W.2d 924, 931 (8): In this cause the parties elected to submit the appeal on their written briefs without oral argument, thereby foregoing the opportunity to clarify many matters, as we will see, anon, which their pleadings, evidence and briefs have managed to pollute with doubt and uncertainty. Our burden is further augmented by the fact that no request was made of the trial court for a statement of the grounds of its decision and that none was made which specifically accounts for the judgment rendered. Civil Rule 73.01(b), V.A:M.R. ; § 510.310, V.A. M.S. Nevertheless, in such a situation the judgment is to be affirmed if it can be sustained upon any reasonable theory. Hiatt v. Hiatt, Mo., 1.68 S.W.2d 1087, 1089(4); Morris v. Western Casualty and Surety Company, Mo.App., 421 S.W.2d 19, 21(1).
[3] This case started as a suit on "a stated account." Defendants' answer denied the account and convoyed a counter claim which alleged that pursuant to the oral contract plaintiffs had agreed to bulldoze 15 acres of defendants' land in accordance with certain specifications for $1200. The counterclaim also averred that while plaintiffs had. partly accomplished the "bulldozing agreed," the work did not conform to the contract and "was done in an unskillful and unworkmanlike manner," all to defendants' damages in the sum of $1973.10. Plaintiffs' reply admitted the contract but generally denied the balance of defendants' pleading. Thereafter, plaintiffs filed an amended petition wherein they adopted the oral contract "as outlined in defendants counterclaim." Because of the construction of the amended petition and its commingling of averments anent the contract work and that performed on an hourly basis "at the agreed, price. of $14.00 per hour," which was also said to be "the reasonable value of the work performed" by the plaintiffs, we are uncertain whether plaintiffs were declaring on the agreement to recover the contract price, in quantum meruit to recover the reasonable value of their services, or alternately (Civil Rules 55.06 and 55.12, V.A.M.R.; §§ 509.050 and 509.110, V.A.M.S.) on both the contract and in quantum meruit. It is to be noted, however, that although a plaintiff may not ordinarily declare upon an express contract and recover on some other agreement [Robson v. United Pacific Insurance Company, Mo., 391. S.W.2d 855, 860(1)], a plaintiff may join a count on an express contract with one based on quantum meruit without being compelled to elect between them [Lee-Schermen Realty, Co. v. Rueffel, Mo.App., 176 S.W.2d 655, 657(8) ] and "[i]f 'it is impossible to say with definiteness whether the plaintiff is counting upon an express contract or upon quantum meruit, he will be permitted to recover upon whichever of the two theories his evidence may warrant. In re Hukreda's Estate (Mo.Sup.) 172 S.W.2d 824, 826." Johnson v. Estate of Girvin, Mo. (banc), 414 S.W.2d 245, 248(1). To add to the confusion, the petition contained the assertion that "plaintiffs did all the work covered in said oral contract" and also the contradictory allegation that plaintiffs .were ordered to quit work by defendants" ere plaintiffs' undertakings were completed. Plaintiffs prayed for $1200 on the contract work.
[4-9] Defendants' answer denied the material allegations of the amended petition, affirmatively pleaded and prayed for damages in the amount of $1973.10, reaffirmed the counterclaim, denied that plaintiffs had been discharged, and alleged "that plaintiffs walked off the job and removed their equipment" before their task was finished. On the day of the trial defendants amended their answer and coun-
Plaintiffs' testimony was to the effect that they had fully discharged their contract obligations and had expended 87 or 88 hours of labor in so doing. It was demonstrated that plaintiffs' claim for $1200 came "close to $14.00 an hour" for the
[10] When one party to a construction I contract or to a contract for the furnishing of labor and services is compelled to relet the work to another because of the total failure of performance by the other contracting party, his measure of damages is generally the difference between the contract price and the reasonable pricehe is compelled to pay on the reletting. Noonan v. Independence Indemnity Co., 328 Mo. 706, 720, 41 S.W:2d 162, 167-168(12), 76 A.L.R. 931, 940; Simons v. Wittmann, supra, 88 S.W. at 794(1); 25 GJ.S. Damages § 79a., pp. 875-876. However, where there has been part performance which falls short of the terms of the contract, the owner's measure of damages is ordinarily the reasonable cost of completion (Pioneer Const. Co. v. Schmidt, Mo., 192 S.W.2d 859, 860(2) ; Burger v. Wood, Mo.App., 446 S.W.2d 436, 442(8); 25 C.J.S. Damages § 75, pp. 855-858; 5 Corbin on Contracts § 1089, at p. 488), and if the breach results from a combination of defective construction and a failure to complete the work, the owner's damages are to be measured by the reasonable cost of reconstruction and completion in accordance with the agreement. Brusca v. Gallup, Mo.App., 429 S.W.2d 780, 783(6) ; Samuels v. Illinois Fire Insurance Company, supra, 354 S.W.2d at 357-X58(3).
[11-13] In our attempt to analyze defendants' position on appeal, we conclude they have fallen into error by failing to distinguish between the fact of performance and the quality and quantity of performance. Brush v. Miller, Mo.App., 208 S.W.2d 816, 820. Had the pleadings and evidence established total failure of performance of the contract or that plaintiffs' services were absolutely worthless, then defendants' damages could properly be measured by the difference between the bargain afforded by plaintiffs' promise and what it reasonably cost defendants to have
Defendants' assignment on appeal, though it lacks much to be desired under Civil Rules 83.05(a) (3) and (e), V.A.M. R., may have been proper had the proof and pleadings established total failure of performance by plaintiffs. Such, however, was not the.case. Defendants, in the circumstances shown, received all the relief they sought and defendants' failure to ask for snore, if they deserved it, was not the fault of the trial court.
The judgment is affirmed.