Vogel v. Lake Timberline Property Owners Voluntary Ass'n, Inc.

741 S.W.2d 869, 1987 Mo. App. LEXIS 5107, 1987 WL 3239
CourtMissouri Court of Appeals
DecidedDecember 22, 1987
DocketNo. 52587
StatusPublished
Cited by5 cases

This text of 741 S.W.2d 869 (Vogel v. Lake Timberline Property Owners Voluntary Ass'n, Inc.) 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
Vogel v. Lake Timberline Property Owners Voluntary Ass'n, Inc., 741 S.W.2d 869, 1987 Mo. App. LEXIS 5107, 1987 WL 3239 (Mo. Ct. App. 1987).

Opinions

GRIMM, Judge.

In this non-jury ease, appellant Arthur M. Vogel obtained a judgment against respondent Lake Timberline Property Owners Association for $3,828.70. Although Vogel’s brief contains three points, they basically raise one issue: Whether the trial court erred in finding, as a matter of law, that Count II of plaintiffs petition did not plead sufficient facts to award prejudgment interest. Finding that it did, we reverse and remand for further consideration by the trial court on the issue of prejudgment interest.

The facts of this case extend now over a thirteen year period. In the fall of 1974, Vogel and representatives of the Association entered into an agreement, whereby Vogel was to construct and furnish the trusses for the roof of a 50 x 50 foot club house, as well as apply the plywood decking and shingles. For this, Association was to pay $5,858.70. This agreement was reflected by a document denominated “Purchase Contract,” and was on a form furnished by Vogel that had a heading Mid-Western Homes and Truss Co., Inc. The purchase contract was signed Mid-Western Homes, Inc., by A. Vogel with a title of “Pres.”, as well as by Arthur E. Gordon, [870]*870with a title of “Chairman” on behalf of the Association. At trial, Vogel testified that Mid-Western Homes and Truss Co., Inc., was originally a corporation, but its corporate charter lapsed in 1972 or 1973. Vogel had not taken any steps to have the corporation reinstated, but it continued to use that name and its forms and he held out that the company existed.

Vogel testified that the specified work was completed by May 15,1975. The Association had made a down payment of $2,000.00, and on May 15, 1975, he sent an invoice to Association, showing a balance due of $3,828.70. That invoice contained a bold-face, heavy black-type statement “Warning Fabricator accepts no liability for immediate or subsequent collapse due to:

1. Mishandling during unloading, storage, or erection.
2. Incorrect or insufficient bracing, whether temporary or permanent.
Mid-Western Homes & Truss Co.
Bonne Terre, Mo.”

Neither that invoice, nor a similar invoice sent June 16, 1975, was paid. Vogel said the price was fair and reasonable.

In June, 1975, Vogel met with representatives of the Association to discuss their complaints about the work. He found that the lines of shingles were not exactly in line, that some of the shingles were cut out of square, and some caulking was still needed. Vogel offered to make corrections, but when one of the Association’s representatives told him “I don’t give a damn if you ever make the corrections or not,” he didn’t do them.

On April 2, 1976, “Midwestern Homes & Truss Co.” as plaintiff filed a petition to enforce mechanic’s lien against the Association. Midwestern’s original attorney withdrew six weeks after filing the petition; two other attorneys entered their appearances, and later each withdrew, before present counsel entered his appearance in June, 1984. Defendant also changed attorneys once. On June 5, 1984, eight years after filing the original petition, a first amended petition was filed. It contained two major changes, (1) the plaintiff was shown to be “Arthur M. Vogel, doing business as Midwestern Homes and Truss Company,” rather than just “Midwestern Homes and Truss Company,” and (2) a second count was added, alleging a claim based on quantum meruit. Eight months later, on February 15, 1985, following the overruling of defendant’s objection to plaintiff’s motion for leave to amend petition on October 9, 1984, the Association filed its answer to the amended petition; it also, for the first time, filed a counterclaim. The counterclaim sought damages of $7500 because Vogel “provided such defective goods and materials and labor in such an unworkmanlike and negligent manner.”

In addition to the facts related earlier, at trial Association presented evidence that “the plywood dipped in between the trusses,” which was caused either by bad plywood or by Vogel’s failure to cover the plywood to keep it from getting wet, which would cause it to warp. Vogel did not put felt or any other protective covering on the plywood decking, and acknowledged that “it rained continuously” before he got anything down on it. Another witness said it rained eight or nine times on the plywood before the shingles were applied. Association’s witness Vernon Clay Bonney, a 48 year-old earpenter/contractor, said that to correct the problem, the existing shingles and plywood would have to be removed, and a new roof installed, at a cost of $4200.00.

This non-jury trial was held on October 23, 1985, almost eleven years after the original agreement was made. The cause was taken under advisement, and each party was granted thirty days to file briefs. Briefs were filed on June 12 and 17, 1986, and judgment was entered June 18, 1986. However, it was later set aside, and an amended judgment was granted November 12, 1986. The court awarded Vogel $3828.70 on Count II (quantum meruit), but denied him judgment on Count I (con[871]*871tract/mechanics lien) and also denied him prejudgment interest. The court also found in favor of Vogel on Association’s counterclaim. The Association did not appeal.

In its amended judgment, the court noted that it was proper to award interest in a case based upon quantum meruit, but stated that in order to do so, “all of the facts necessary for such an award must be plead [sic] in the count upon which the party prevails by that party seeking such award”; that “one such fact required to be plead [sic] is the date upon which demand for payment was made”; and that the count, based on quantum meruit, “does not plead the date upon which demand for payment was made.” Therefore, the court denied “plaintiffs prayer for prejudgment interest contained” in that count.

In a non-jury case, a decree must be sustained if it is supported by substantial evidence, it is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). Here, in effect, Vogel alleges that the trial court erred in finding, as a matter of law, that the quantum meruit count did not plead sufficient facts to award prejudgment interest.

In examining Vogel’s amended petition, we find that the quantum meruit count contains six numbered paragraphs. After pleading that Vogel provided materials and labor at the Association’s request, and that the Association accepted such and is enjoying its benefits, it is alleged that the reasonable value thereof is $5828.70, of which $2000 has been paid, leaving a balance due of $3828.70. The count then concludes as follows:

“6. That demand for payment thereof by the Defendant has been made, but said payment has been refused by the Defendant.
WHEREFORE, on Count II of his First Amended Petition, Plaintiff prays payment in the amount of Three Thousand Eight Hundred Twenty-eight Dollars and Seventy Cents ($3,828.70), plus interest at the legal rate from December 4, 1974, and for his costs herein expended.”

Before examining Vogel’s specific point, reference needs to be made to several legal principles concerning an action in quantum meruit. An action in quantum meruit is one of the forms of an action in assumpsit; assumpsit is the remedy for the enforcement of quasi-contractual obligations.

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Bluebook (online)
741 S.W.2d 869, 1987 Mo. App. LEXIS 5107, 1987 WL 3239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vogel-v-lake-timberline-property-owners-voluntary-assn-inc-moctapp-1987.