Opinion
No. 27801.
February 21, 1950.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, FRANCIS E. WILLIAMS, J.
Edward C. Schneider, of St. Louis, for appellant.
Robert A. Roessel, of St. Louis, for respondent.
This is the second appeal in this case, which is a suit in equity for an accounting of the amount due plaintiff, J. P. Larson, under two successive written contracts which had been entered into between him and defendant, Crescent Planing Mill Company, in regard to the employment of his services in estimating the quantity items of millwork to be required under plans and specifications of proposed construction jobs upon which defendant expected to bid.
The facts of the case are fully set out in our opinion on the first appeal, which is reported as Larson v. Crescent Planing Mill Co., Mo.App., 218 S.W.2d 814.
Under the two contracts in question defendant was obligated to pay plaintiff each month an agreed percentage of its total sales of "millwork for construction purposes" during the preceding month.
In the attempted settlement of what was due plaintiff under his contracts upon their termination, a dispute arose over the meaning of the phrase "millwork for construction purposes". Defendant took the position that the term "construction", as used in the building industry, was generally limited in its application to new construction, and did not embrace alteration or improvement jobs in connection with existing structures. Under this theory plaintiff would only have been entitled to receive his agreed percentage of total sales of such millwork as went into new construction; and millwork sold for alteration or improvement jobs, which had comprised a substantial part of defendant's business, would have been excluded from the calculations. Plaintiff argued, on the other hand, that the millwork sold by defendant had been none the less used for construction purposes within the contemplation of the contracts whether it was used in new construction or in the alteration or improvement of existing structures. Under this theory he would of course have been entitled to his agreed percentage of the sales of all millwork going into buildings, less sales to dealers, retail lumber yards, or branch houses or affiliates of defendant, which were specifically excluded from the application of the contracts.
But while it is true that the principal controversy between the parties was over what was meant by "millwork for construction purposes", there was at the same time a dispute over certain incidental or secondary matters, including the question, as our former opinion will disclose, of whether glazing, priming, and hardware should be treated as exempt.
Finally plaintiff instituted his suit for an accounting; and after the case had been pending for quite some time, the parties conferred together and agreed upon a plan for checking defendant's records of sales. Under this plan all the items of sales were separated into three columns, the first, those that were undisputed and as to which it was agreed that plaintiff was entitled to additional compensation; the second, those that were concededly exempt from the application of the contracts and upon which plaintiff was concededly entitled to no compensation; and the third, those as to which the parties were still in disagreement as to whether plaintiff was entitled to compensation.
As the result of this check it appeared that upon the undisputed items in the first column which defendant had not previously accounted for to plaintiff, there was due plaintiff the sum of $1,542.53, and that upon the items placed in the third or disputed column plaintiff's agreed percentage, if all the items should be allowed in his favor, would amount to $3,325.95.
When such tabulation had been completed, the parties embodied the same in an agreed statement of facts and filed the same in the cause with the suggestion to the court that the disposition of the items appearing in the third or disputed column depended upon the interpretation of what was meant by "millwork for construction purposes", and that once this had been determined, the various items in such column could then be classified accordingly. In other words, the respective parties, by their stipulation, invited the court to rule such preliminary question of law short of a final decision of the case, whereupon the ultimate accounting was then to be proceeded with and completed and the whole case disposed of by whatever method might be found expedient.
After a hearing of the case the court entered a judgment sustaining plaintiff's contention regarding the meaning of "millwork for construction purposes". However the court did not stop with the entry of the interlocutory declaratory judgment upon the specific matters which had been submitted to it for its decision, but instead went further and beyond the issues then before it and entered up a money judgment in plaintiff's favor for the aggregate amount of $7,113.08, which embraced not only the sum of $1,542.53 admittedly due plaintiff upon the items appearing in the first or undisputed column, but also the sum of $3,325.95 representing the amount of commission which would be due him upon all the items appearing in the third or disputed column, if all such items should be allowed in his favor, which was still an open question with the tabulation subject to correction or change. The balance of the sum allowed was made up of interest computed from the dates of the respective breaches of the contracts.
From the judgment so entered defendant appealed to this court, where we affirmed the lower court's interpretation of the phrase "millwork for construction purposes", but pointed out that it had never been intended that the interpretation of such phrase should then and there end the whole case and authorize the court to enter a money judgment for the aggregate amount of all the items appearing in the third or disputed column. On the contrary, we noted that on the record as it had been brought to us it was shown that the tabulations were not complete, and that the question of the exemptions and allowances on glazing, priming, and other matters was still to be considered.
It this situation we reversed the judgment and remanded the cause with directions to the lower court to hold its decision in abeyance with respect to its correct interpretation of "millwork for construction purposes"; to direct the taking of whatever further steps might be necessary in order to determine the whole amount due plaintiff in the light of the court's preliminary decision upon the meaning of "millwork for construction purposes"; and upon completion of the accounting to render a final decree which should include a money judgment for plaintiff for the amount so ascertained.
We had thought that our directions were entirely clear, and especially so when they were read along with the language of the opinion that had immediately preceded the directions given.
It was very plain that until such time as the final judgment could be entered, the court was to hold its decision in abeyance with respect to the interpretation of "millwork for construction purposes". That part of its decision had been correct, and there was to be no further litigation upon that feature of the case. The fault had lain in the court's undertaking to give plaintiff a money judgment for the amount of the items appearing in the disputed column, when the record had shown, and plaintiff himself had admitted on the stand, that the tabulations were not complete, and that the question of exemptions and allowances on glazing, priming, and the like, was still to be considered. Indeed, in paragraph 11 of the agreed statement of facts upon which the case had been submitted, the parties had informed the court that the invoices covering the undisputed items had been rechecked with respect to such things as glass and hardware, which were to be deducted, and an agreement reached as to the net amount of the undisputed items, but that "as to those items of glass and hardware, etc., concerning which no agreement could be reached, they are considered in dispute".
In order to afford an opportunity for making the proper deductions for glazing, priming, hardware, and the like in the case of items that were still in dispute, the court was then directed to make provision for such "further steps" to be taken as might be necessary to determine the amount due plaintiff. This direction obviously contemplated some additional and further action, either voluntarily by the parties themselves, or else in the form of a hearing before the court if the parties should be unable to agree. When all this was done, the court was then, but not until then, to enter its final judgment in plaintiff's favor for whatever sum was ascertained to be the amount he was entitled to recover.
It subsequently developed, however, that our directions, regardless of how explicit we had thought them to be, were not clear either to plaintiff or to the court itself.
On the very day that our mandate reached the lower court, and in disregard of the fact that the money judgment theretofore entered by the court had been reversed by this court on appeal, plaintiff filed a motion asking the court to render a final decree and enter a money judgment for plaintiff for the amount ascertained by the court.
As the ground for the motion plaintiff pointed out that at the original hearing of the cause no evidence had been introduced by defendant to question the amount of the disputed items except that during plaintiff's cross-examination it had been brought out that items of hardware, glazing, priming, and the like, if found among the disputed items, would be the subject of deduction; and that the "presumption" was therefore fair and conclusive on the record that the amount of $3,325.95 was the correct amount due plaintiff on the disputed items. Although this court had definitely held that no such judgment could properly be entered on the then existing state of the record, plaintiff none the less prayed the court to find that he was entitled to recover the sum of $3,325.95 on the disputed items, and to render its final decree accordingly.
At the conclusion of the hearing the court sustained the motion and entered a money judgment in plaintiff's favor for the aggregate amount of $7,478.21, which included, not only the undisputed figure of $1,542.53, but also the disputed figure of $3,325.95, with accrued interest in both instances. In other words, what the court actually did was to reinstate the judgment that this court had reversed, the only difference being that a greater amount of interest had meanwhile accrued. The result was that defendant, which had successfully appealed from the prior judgment, was now worse off than it was before its appeal was taken.
It was the court's theory that defendant's failure to have offered any evidence upon its claim for deductions, either at the original hearing or at the hearing on the motion, negatived the necessity for further consideration of any such items, and warranted the entry of judgment in plaintiff's favor for the full amount of the disputed items.
Following an unavailing motion for a new trial, defendant gave notice of appeal, and by subsequent steps has caused the case to be transferred to this court for our review.
The court's action in summarily entering judgment was obviously in contravention of the directions this court had given it, and grew out of its failure to appreciate that all that it had been called upon to do at the original submission of the case was to make certain preliminary rulings short of a final decision. That it was laboring under such misconception is evidenced by the statement in its memorandum that "it has always been and is now the court's view that when the trial was had, this was to be a final determination". The court overlooked the fact that what the parties had requested by their stipulation was merely an interpretation of "millwork for construction purposes", after which the various items were then to be classified accordingly.
As a matter of fact, the record makes it very clear why the parties had adopted such a procedure. As we have already pointed out, their chief difference of opinion was in regard to what constituted "millwork for construction purposes". When they undertook to reach a settlement, they went over the invoices for all the years during which plaintiff had rendered services. In the case of jobs about which there was no question, the proper deduction was made for glazing, priming, hardware, and the like, and the net amount due plaintiff was set down in the undisputed column. But in the case of jobs where there was a controversy as to whether the millwork had been sold for construction purposes, there was no such breakdown, but instead the gross amount of the invoices was set down in the disputed column. If defendant prevailed in its contention as to what was meant by "millwork for construction purposes", that would end the matter, and there would be no occasion for going to all the trouble of breaking down the invoices. However if plaintiff prevailed, the invoices were then to be broken down and deduction made for exempt items. Plaintiff did prevail, which means that the disputed items must now be rechecked and proper allowances made so that the court can determine the precise amount that plaintiff is entitled to recover.
It does not solve the problem to say that defendant offered no evidence, either at the original hearing or at the hearing on the motion, upon the question of what deductions were to be allowed. There was no such issue involved at either hearing. At the original hearing the question was merely one of determining what was meant by "millwork for construction purposes", after which any deductions were then to be made. At the hearing on the motion the question was merely one of whether the court was to reenter the judgment that this court had just reversed upon the theory that since defendant, at the original hearing, had offered no evidence upon an issue not before the court, there was a fair and conclusive "presumption" on the record that plaintiff was entitled to the full amount of the disputed items. Nor is it decisive of the matter to argue where the burden lies. The question is one of an accounting in which both parties must participate.
It is a conceded principle of law that where an appellate court remands a case to a trial court with specific directions as to the further course to be pursued, it becomes the duty of the trial court to do whatever is directed, and it has no power to do anything contrary to, beyond, or not embraced in such directions. Murphy v. Barron, 286 Mo. 390, 228 S.W. 492. If, as in this case, the lower court is directed to proceed with an accounting between the parties, it must proceed and take the accounting in obedience to the mandate. Marston v. Catterlin, 290 Mo. 185, 234 S.W. 816.
In so far as the items included in the disputed column were sold for construction purposes, there is no denial that plaintiff is entitled to his agreed percentage on such portion of those items as constituted millwork. To the end of ascertaining what that agreed percentage may be, the court, in obedience to our mandate, must now proceed with the accounting so that it may determine whether deductions are to be allowed for glazing, priming, hardware, and the like. The precise procedure to be followed in having such an accounting is of course within the sound discretion of the court. It may be that the parties themselves can work the matter out to the court's satisfaction as they did in the case of the undisputed items. If not, then the tabulation must be revised under the direct supervision of the court. The only thing is that the court must pursue the general course directed. Furthermore the court has the same power to protect itself against dilatory tactics as it possesses in the case of any other lawsuit.
The judgment rendered by the circuit court should be reversed and the cause remanded for further proceedings in accordance with the directions given in our former opinion as elaborated upon and explained in this opinion. The Commissioner so recommends.
The foregoing opinion of BENNICK, C., is adopted as the opinion of the court.
The judgment of the circuit court is, accordingly, reversed and the cause remanded for further proceedings as recommended by the Commissioner.
ANDERSON, P. J., and HUGHES and McCULLEN, JJ., concur.