Concordia Lumber Co. v. Davis

696 S.W.2d 851, 1985 Mo. App. LEXIS 3543
CourtMissouri Court of Appeals
DecidedJuly 23, 1985
DocketNo. WD 36175
StatusPublished
Cited by7 cases

This text of 696 S.W.2d 851 (Concordia Lumber Co. v. Davis) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Concordia Lumber Co. v. Davis, 696 S.W.2d 851, 1985 Mo. App. LEXIS 3543 (Mo. Ct. App. 1985).

Opinion

BERREY, Jm e.

The jury returned a verdict on defendants’ counterclaim in the sum of $1,800.00 and against the plaintiff on its petition on account. From this verdict the plaintiff appeals.

Judgment affirmed.

Defendants purchased 239 yards of carpet from plaintiff for the sum of $3,057.58 which was installed in February, 1979. De[852]*852fendants were not satisfied. They contacted plaintiff about their dissatisfaction “[a]round the 28th of March.” They paid $1,535.14 on the account on June 12, 1979. The balance was not paid because defendants could not get plaintiff to come and inspect the carpet and they felt that by withholding part of the monies the plaintiff would inspect the carpet.

Wendell Wuthnow, a seventeen-year employee of E.F. Selby (carpet) Company and currently vice-president and sales manager testified that he inspected the carpet in question about “... four years ago [approximately April, 1980].” He testified he was there to check on the carpet quality and not on the installation. His opinion was the defendants’ complaints were not justified. He also noted the installation was above industry standards. On cross-examination he acknowledged observing loose seams along edges of the room but opined it was properly seamed. However, he did acknowledge that one area was not stretched correctly.

Sidney N. Davis, one of the defendants, testified the carpet was purchased in December of 1978 or January of 1979 for $3,057.58 from plaintiff and was installed the week of February 12, 1979, by Paul Dial, an employee of plaintiff. Davis explained that a defect in the kitchen carpet was found and was replaced with new carpet. Davis testified that they made repeated attempts to contact plaintiff’s owner/president, Mr. Schnakenberg, including trips to his office. Finally, defendants made contact with him and told him of their complaints that the . carpet had not been installed correctly” and there was a two-foot split in a heavy traffic pattern. After the carpet had been down about a year Schnakenberg went to defendants’ home and viewed it with a representative from the carpet mill. While viewing the premises plaintiff “... admitted that the tape had let go in this one big spot ... .” He also said he would repair it and that the others were not significant. Extra carpet was purchased by defendants to specifically avoid the necessity of placing seams in heavy traffic areas.

Davis testified that, “... for the entire year from the time it was laid until we got Mr. Schnakenberg out there, we kept a throw rug over the entry off of the carport so someone wouldn’t trip over a two-foot hole in the seam.” Davis had this repaired after plaintiff had failed to do so. Davis testified the carpet was .. pretty bad_" “Its unrepairable ... .” Mrs. Davis complained about the manner in which the carpet was installed in a closet and at the foot of the stairs. At the latter the installers cut two pieces and neither fit the area. The defendants purchased eleven extra yards of carpet to avoid having seams "... where they don’t have to be.” As it turned out the seams were “[i]n all of the bad spots.”, i.e., the middle of the bathroom door. All three bathrooms had seams in the middle yet all were “... less than twelve feet so there would not have been any reason to have had a seam in the bathroom.” Other irregularities existed in the carpet installed.

In November of 1980, the defendants paid another carpet firm to repair a two-foot split, “... because I couldn't live with it anymore.” Mrs. Davis complained the carpet was degrading, it mats very badly, spots do not clean up and “... it’s just coming apart.”

Plaintiff raises two points for review: Point I, Instruction No. 8 was improper as it required the jury to award defendants damages for property they had not paid for, and the same Instruction was improper in that no evidence of market value of carpet was offered by defendants. For Point II, plaintiff alleges that Instruction No. 7 was given in error since the evidence adduced was contrary to the instruction.

Instruction No. 8 was MAI 4.02 and read as follows:

If you find in favor of defendants on defendants’ claim for damages, then you must award defendants such sum as you may find from the evidence to be the difference between the fair market value of the defendants’ carpet before it was [853]*853damaged and its fair market value after it was damaged.

Plaintiff alleges defendants did not pay for carpet, had used it for five years and as such are not entitled to relief. Mr. Schnak-enberg, president and general manager of plaintiffs corporation, testified the balance due on the account was $2,408.01. Defendant Sid Davis testified the price of the carpet installed was $3,057.50 and that on June 12, 1979, he paid $1,535.14 on the carpet account, withholding payment in full until someone from plaintiffs company came out and looked at the complaints he had on the carpet and its installation.

Defendants purchased all of the materials for construction of their new home, except plumbing fixtures, from the plaintiff. The cost of the carpet was $3,057.50; this was the amount the defendants obligated themselves to pay for the new carpet. Their complaints about its installation began from the first day Mr. Dial, the installer and employee of plaintiff, commenced laying the carpet and installed carpet in the closets contrary to defendants’ instructions.

The language of an instruction should be so plain that there can be no doubt as to its meaning. Black v. Kansas City Southern Railroad Company, 436 S.W.2d 19, 27 (Mo. banc 1968). Certainly, MAI 4.02 as given leaves no doubt as to how defendants' damages are to be determined.

The defendants requested Bob Comfort, the manager of Hobson Carpet Center in Sedalia, view their carpet. He viewed it twice, once before trial and once in October of 1980. Defendants also had the carpet repaired by one of Hobson’s employees. Davis testified he spent $30.00 to repair the two-foot split, he was not satisfied with the carpet and wanted it replaced.

Comfort testified he had been in carpet sales since September of 1963 and had worked at Hobson Carpet Center since that date. He had worked as an apprentice installer, an installer, salesman and manager.

Comfort testified the overall installation was very poor. A dining room seam was improperly installed. The toe kicks in the vanity in the dining room were cut short. The bathroom carpets were cut crooked, the carpet behind a stool was cut short of the wall, and there were seams in the middle of the bathroom carpet. The seams were loose between the hall and living room and the steps; “Over all it was a very amateur job.”

Comfort testified the problems were caused by poor installation, that the carpet was not properly installed and could not be repaired. To remove the carpet if the house were empty and the furniture removed would cost 50 cents a yard. According to Comfort there was nothing wrong with the carpet quality, it was installed wrong. Comfort testified it would cost $2,500.00 to replace the existing carpet plus the cost of removing the old carpet.

MAI 4.02 is the proper instruction to give where there is property damage only. Wright v. Edison, 619 S.W.2d 797, 801 (Mo.App.1981).

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Bluebook (online)
696 S.W.2d 851, 1985 Mo. App. LEXIS 3543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/concordia-lumber-co-v-davis-moctapp-1985.