Jerry Ward Construction Co. v. Executive Hills Home Builders, Inc.

TURNAGE, Judge. Jerry Ward Construction Company brought suit against Executive Hills Home Builders, Inc. on an account. The petition pled several theories but the case was tried only on the account claim. The court heard the case without a jury and entered judgment in favor of Ward in a total amount of $44,270.61 for carpentry work performed on ten homes and two business buildings. Executive Hills contends Ward failed to prove the reasonableness of his charges. Affirmed in part and reversed in part and remanded. The parties stipulated that Ward was hired by Executive Hills to perform carpentry work on various homes being constructed by Executive Hills on lots owned by it and to do certain carpentry work on two business buildings. The parties stipulated that the work was performed in a satisfactory and workmanlike manner. In addition, the parties stipulated to the amount of Ward’s bills to Executive Hills for each lot and the two office buildings and further [630] stipulated to the amount remaining unpaid on each bill. The petition on account was in 12 counts with each count alleging work on a different lot or business building. Ward testified that he had been in the carpentry-business for about 20 years and employed several carpenters. Ward testified that on two lots, 15 and 22, he had agreed to perform carpentry work for a fixed fee, but on the other lots and the business buildings there was no agreed fee for his work. Ward testified to the hourly amount he paid his carpenters and the amount he billed for their time to cover his overhead and profit. Ward said changes ordered by Executive Hills resulted in Ward’s charges being about double the agreed fee on Lot 22. Ward offered no evidence that the charges made for carpentry work on the lots or business building not subject to a fixed fee were reasonable. Invoices to Executive Hills listed only the lot, date of the week covered, and total charge. The architect employed by Executive Hills said Ward gave a quote for his price to frame the house on Lot 22 and he converted this to a square foot cost. Because the square foot cost was comparable to the other quotes he had, Ward was hired. Executive Hills contends that the judgment should be reversed because Ward was required to prove the reasonable value of his work but failed to do so. On an action on account the plaintiff is required to prove “an offer, an acceptance and consideration between the parties as well as the correctness of the account and the reasonableness of the charges.” Coca-Cola Bottling Co. v. Groeper, 691 S.W.2d 395, 397[1] (Mo.App.1985). That case further held that the burden of proof is on plaintiff to make a submissible case. Id. at 397[2], In this case Ward was required to prove that the charge he made for work on each lot not covered by a fixed fee contract, and on each business building, was reasonable. The only evidence on that question offered by Ward was the reasonableness of the hourly amount which he charged for carpentry work. Executive Hills contends the reasonable value of the hourly wage paid for labor is only part of the burden Ward carried because he was also required to prove that the charges for the work performed on each lot and business building not covered by a fixed fee contract was reasonable. Executive Hills is correct. The burden of proof on Ward is equivalent to the burden of proof in a cause of action based on quantum meruit. In that cause of action, it is necessary to prove the reasonable value of the labor supplied. McCardie & Akers Const. Co., Inc. v. Bonney, 647 S.W.2d 193, 194[2] (Mo.App.1983). Ward could have proven reasonable value by adducing evidence as to the reasonable value of the labor performed on each lot and each business building in a lump sum. Ward failed to introduce such evidence. Ward could have also satisfied his burden of proof by proving the reasonable number of hours required to complete the work on each lot and business building together with the reasonable value per hour for the carpentry work. Otte v. McAuliffe, 441 S.W.2d 733, 737 (Mo.App.1969) (the reasonable number of hours must be established). Ward proved only that the amount which he charged Executive Hills for each hour of carpentry work was reasonable. As stated, this was not sufficient. Ward was required to prove that the charges actually made for the work on each lot and business building not covered by an agreement were reasonable. This could be established in one of two ways. Ward could have established that the number of hours charged to Executive Hills for each lot and building was reasonable. This together with his proof of the reasonable value of carpentry labor per hour would have proven the total charge for each lot and building was reasonable. Or in the alternative, Ward could have proved that the sum he billed Executive Hills for each lot and building was reasonable for the work performed. Ward failed to do either of these. Instead, Ward contends that Executive Hills conceded his charges were reason [631] able; this is a mischaracterization of the evidence. There was evidence that Ward charged a reasonable hourly charge for carpentry labor. This, however, did not prove the reasonable charge for the work performed on each lot and building.1 There is no dispute that Ward is entitled to $10,800 which was the contract price on Lot 15 which remains unpaid. The contract price on Lot 22 has been paid. The judgment is affirmed to the extent of $10,800 representing the contract price on Lot 15. The judgment above that amount is reversed and this cause is remanded for further proceedings. MANFOED, J. concurs. BEEEEY, J. dissents in separate dissenting opinion. Footnotes [1] The dissent relies on the rule that payment of a bill provides substantial evidence from which reasonableness may be inferred. Ward is not seeking to recover on any bill which has been paid. In that circumstance there is no basis on which to apply the rule. Further, as the testimony of Cantrell demonstrates, Executive thought Ward’s charges were too high. Executive produced evidence that the amount Ward sought to recover in this case was unreasonable for the work performed.