Sullivan, Findley Lucas and Ralph T. Finley for appellants.
(1) There can be no actionable negligence in the absence of a duty or obligation of the defendants to protect the plaintiffs from
injury, a failure to discharge such duty, and injury proximately resulting from such failure. Whelan v. St. Louis Soft Ball Assn., 356 Mo. 622 , 202 S.W.2d 891 ; Cameron v. Small, 182 S.W.2d 565. (2) The work to be done under the written contract was to be performed upon an existing structure in possession and control of plaintiffs, and by their contract, the plaintiffs impliedly represented that the structure should continue in existence and in position and condition for the doing of the work. 9 C.J.S. 962-963, sec. 466 (2); Haynes v. Second Baptist Church, 88 Mo. 285 , 292; Haynes v. Second Baptist Church, 12 Mo. App. 536 ; Beattie Mfg. Co. v. Heinz, 120 Mo. App. 465 , 97 S.W. 188; United States v. Gibbons, 109 U.S. 200 ; Sandy Hites Co. v. State Highway Comm., 347 Mo. 954 , 149 S.W.2d 828 . (3) This rule is followed in other jurisdictions. United States v. Spearin, 248 U.S. 132 ; Penn Bridge Co. v. New Orleans, 222 F. 737; Wm. Miller Sons Co. v. Hospital Trustee, 243 Pa. 502 ; Canuso v. Philadelphia, 326 Pa. 302 , 192 A. 133 ; Great Lakes Const. Co. v. Creosoting Co., 139 F.2d 456 ; Case Note, 53 A.L.R. 122. (4) Where the owner furnishes plans for work by a contractor, the contractor is not liable for defects or insufficiencies in the plan of work, or for defects resulting from the doing of the work, unless he assumes responsibility for such plans, and in this case defendants did not assume such responsibility or guarantee the safety of the plan of work. Sandy Hites Co. v. State Highway Comm., 347 Mo. 954 , 149 S.W.2d 828 ; A.H. White Co. v. Burglass, 184 So. 225; Canuso v. Philadelphia, 326 Pa. 302 , 192 A. 133 . (5) The plaintiffs cannot establish a duty on the part of defendants to stock-pile evenly or distribute the weight of the earth on the south half of the garage roof by showing a custom or practice to pile earth evenly or distribute the weight thereof on the roof. The written contract authorized defendants to stock-pile the earth on the south half of the garage roof, without restriction as to depth of piling the earth or distributing the weight thereof, and no duty can be implied contrary to the terms of the contract. Sandy Hites Co. v. State Highway Comm., 347 Mo. 954 , 149 S.W.2d 828 . (6) No custom can be shown contrary to the terms of the contract or to change or vary the terms thereof, for to do so would be to make a new contract for the parties. State ex rel. v. Public Service Comm., 269 Mo. 63 , 189 S.W. 377. Staroske v. Pulitzer Pub. Co., 235 Mo. 67 , 138 S.W. 36; Kirkland v. Bixby, 282 Mo. 462 , 222 S.W. 462 ; Jordan v. Daniels, 224 Mo. App. 749 , 27 S.W.2d 1052 . (7) The claimed custom was offered for the purpose of establishing a duty independent of the contract. In such case the custom must be pleaded explicitly, proved by evidence, and its existence submitted to the jury. None of these things was done. Martin v. Wabash Ry. Co., 325 Mo. 1107 , 30 S.W.2d 735 ; Evans v. Santa Fe Ry. Co., 345 Mo. 147 , 131 S.W.2d
604; Noyes-Norman Shoe Co. v. Cooper, 4 S.W.2d 486. (8) The evidence to establish the claimed custom, failing to show that the custom was definite, general, uniform, and certain, and applicable to a contract like that here involved, was wholly insufficient. Ehrlich v. Insurance Co., 103 Mo. 231 , 15 S.W. 530; Porterfield v. American Surety Co., 201 Mo. App. 8 , 210 S.W. 119; Leonard v. Dougherty, 221 Mo. App. 1056 , 296 S.W. 263 . (9) The plaintiffs cannot rely upon the theory of a negligent act, independent of the contract, because the petition attempts to state a cause of action for negligent breach of contract in the performance of said contract. Meade v. Railroad Co., 183 Mo. App. 353 , 166 S.W. 1116; Hess v. Mfg. Co., 164 Mo. App. 153 , 148 S.W. 179; Klingenberg Son v. Davis, 219 Mo. App. 1 , 268 S.W. 99 ; 1 C.J. 1015, sec. 138. (10) Since the petition pleads and relies upon breach of contract, no recovery can be had on the theory of independent tort. Wernick v. Railroad, 131 Mo. App. 37 , 109 S.W. 1028; Kohnle v. Paxton, 268 Mo. 463 , 188 S.W. 155; Lathinen v. Continental Bldg. Co., 339 Mo. 438 , 97 S.W.2d 102 ; 1 Am. Jur. 449, sec. 57. (11) Even in a case where a plaintiff may waive the contract and sue in tort, the defendant may set up a controlling contract as a defense. Brown v. Frisco, 135 Mo. App. 624 , 117 S.W. 112. (12) The petition does not sufficiently plead a modification of the original contract. No facts are pleaded showing an agreement for such modification, nor is any consideration therefor pleaded or shown by the evidence. American Contracting Co. v. Norton, 253 S.W. 372; State ex rel. v. Shain, 338 Mo. 1208 , 93 S.W.2d 992 . (13) But if the modification was properly pleaded, plaintiffs, having failed to prove the purported modification (58-61), cannot recover on the original agreement. State ex rel. v. Bland, 353 Mo. 639 , 183 S.W.2d 878 . (14) The sinking of the garage roof and foundations, and the consequence damages to plaintiffs, resulted solely from defects in the plan. The defendants are not responsible for defects in the plan of work prescribed by plaintiffs and agreed upon in the contract. Sandy Hites Co. v. State Highway Comm., 347 Mo. 954 , 149 S.W.2d 828 ; Wm. Miller Sons Co. v. Homeopathic Hospital, 243 Pa. 502 , 90 A. 394 U.S. v. Spearin, 248 U.S. 132 ; Penn Bridge Co. v. New Orleans, 222 F. 737, 9 Am. Jur. 20, sec. 28; Case Note, 88 A.L.R. 797. (15) The plaintiffs were guilty of negligence as a matter of law in providing a defective plan of work. Furthermore, the plaintiffs were guilty of contributory negligence as a matter of law, because Mr. Allen knew at 5 P.M. on the day before the sinking the location and size of the pile of the earth and never objected to the manner of doing the work. Herring v. Franklin, 339 Mo. 571 , 98 S.W.2d 619 ; Reynolds Co. v. Telephone Co., 152 Mo. 361 , 133 S.W. 141; Farley v. Pettes, 5 Mo. App. 262 ; 38 Am. Jur. 879, sec. 199. (16) The plaintiffs being the owners and
in possession of the garage were chargeable with any conditions with respect to the sufficiency of the foundations and roof of the garage which might cause damage under the contract, and are charged not only with facts actually known to them, but those which they had a conscious means of knowledge, including knowledge of the strength of the foundations, of the condition of their property, and provisions of the city ordinances with respect to the matters arising under the contract and work thereunder. McKeighan v. Kline's Inc., 339 Mo. 523 , 98 S.W.2d 555 ; Summa v. Morgan Real Estate Co., 350 Mo. 205 , 165 S.W.2d 390 ; Crane v. Liberty Foundry Co., 322 Mo. 592 , 17 S.W.2d 945 ; Moore Mfg. Co. v. Railway Co., 256 Mo. 167 , 165 S.W. 305; Hickman v. Union Electric Co., 226 S.W. 570; 39 Am. Jur. 238-240; 45 C.J. 653-655, sec. 27. (17) Where negligence is mutual, the plaintiff cannot recover. Hogan v. Citizens' Ry. Co., 150 Mo. 36 , 51 S.W. 473; Zumwalt v. Railroads, 175 Mo. 288 , 74 S.W. 1015; 45 C.J. 942-943, sec. 501; 38 Am. Jur. 866-867, sec. 190, note 15. (18) The evidence is insufficient to authorize a finding that the plaintiffs' damages were proximately caused by any negligence of the defendants. The sinking of the roof and the consequent damages resulted from the defective plan of work and the acts of the plaintiffs, as set forth for which defendants are not responsible. Giles v. Moundridge Milling Co., 351 Mo. 568 , 173 S.W.2d 745 ; Evans v. Massman Const. Co., 343 Mo. 632 , 122 S.W.2d 924 ; 45 C.J. 930, sec. 490. (19) Plaintiffs' Instruction 1 does not submit any act of negligence amounting to wrongful performance of the contract, or the piling of the earth from more than the north half of the roof on the south half thereof, and what defendants are charged with doing under the theory of said instruction would be stock-piling as provided in the contract. Evans v. Massman Const. Co., 343 Mo. 632 , 122 S.W.2d 924 . (20) The verdict, under all the evidence, could be based only upon speculation and conjecture as to the condition of the soil, the strength of the foundations, the amount of the weight on the footings, the conclusions of plaintiffs' expert witnesses based upon unproved inferences and assumptions, the amount of plaintiffs' damages, and as to any act of defendants as being the proximate cause of the said damages. McAnany v. Henrici, 238 Mo. 103 , 114 S.W. 633; Ambruster v. Realty Inv. Co., 341 Mo. 364 , 107 S.W.2d 74 . (21) Plaintiffs' Instruction 1 erroneously fails to advise the jury as to the rights and obligations of the parties under the contract. Clark v. Railway Co., 64 Mo. 440 ; Harrison v. Franklin, 126 Mo. App. 366 , 103 S.W. 585. (22) The said instruction has the effect of making a new contract for the parties. Staroske v. Pulitzer Pub. Co., 235 Mo. 67 , 138 S.W. 36. (23) Said instruction is in conflict with defendants' Instruction 3 defining "pile" and "stock-pile" and in conflict with defendants' Instruction 4 with respect to non-liability of defendants if the roof
would have sunk if the earth had been piled in accordance with plaintiffs' contentions. It is error to give conflicting instructions. McGrew v. Thompson, 353 Mo. 856 , 184 S.W.2d 994 ; State ex rel. v. Shain, 341 Mo. 733 , 108 S.W.2d 354. (24) Said Instruction 1 broadens the issues under the pleadings because it is based upon the theory of ordinary negligence, without reference to the contract, and the court having erroneously admitted testimony as to custom and practice of stockpiling the earth, under the instruction the jury were turned loose to consider such erroneous evidence as a fact and circumstance under plaintiffs' Instructions 1 and 2. No custom was pleaded or specifically submitted to the jury. Instructions must be within both the pleadings and evidence. State ex rel. v. Allen, 313 Mo. 384 , 282 S.W. 46 . (25) Said Instruction 1 gives the jury a roving commission to imply any duty which they might think right under the contract, or under an erroneous and unfounded custom and practice, regardless of the plaintiffs' duties and obligations under the contract, or of their obligations as owners of, and in possession of, the garage in question. Long v. Mild, 347 Mo. 1002 , 149 S.W.2d 853 . (26) Said Instruction 1 directs a verdict for plaintiffs and ignores all defenses of defendants under the pleadings and evidence, except the defense that plaintiffs were guilty of contributory negligence, by which exception the instruction necessarily excluded any other defense under other instructions. An instruction should not ignore issues and defenses, particularly where it excludes such defenses. Griffith v. Meat Products Co., 347 Mo. 28 , 145 S.W.2d 431 . (27) Said Instruction 1 is erroneous because the clause telling the jury that if defendants "negligently removed a large amount of earth from the north part of the garage and negligently" piled it on the south end of the garage, the plaintiffs could recover, is plainly misleading, and also unsupported by the evidence. (28) The court erred in refusing defendants' offered Instruction E. Said instruction is the only instruction offered defining or declaring the duties of the parties under the issues in the case It is neither abstract nor misleading under the evidence and the issues in the case. Leimkuehler v. Wessendorf, 323 Mo. 64 , 18 S.W.2d 445 ; Foulkes v. Fleming, 322 Mo. 718 , 17 S.W.2d 511 ; Beattie Mfg. Co. v. Heinz, 120 Mo. App. 465 , 97 S.W. 188; 64 C.J. 789-790, sec. 647; Barree v. Cape Girardeau, 132 Mo. App. 182 , 112 S.W. 724. (29) The court erred in admitting evidence as to custom or practice to pile the earth so as to distribute the weight on the roof. 22 C.J. 928, sec. 1131; Buhrkuhl v. Construction Co., 232 Mo. App. 967 , 95 S.W.2d 843 ; Worthington Dr. Dist. v. Elm Twp., 339 Mo. 270 , 96 S.W.2d 374 ; Reid v. Ins. Co., 58 Mo. 421 ; Fruin v. Crystal Ry. Co., 89 Mo. 397 ; Maher v. Coal Coke Co., 323 Mo. 799 , 20 S.W.2d 888 . (30) The verdict for plaintiffs on defendants' counterclaim is unsupported by the
evidence and is contrary to the law under the evidence. The contract was frustrated by the fault of plaintiffs, and when the garage sank the work could not be done under the contract, giving defendants a right to sue on quantum meruit for what they had one. 9 Am. Jur. 46, sec. 64; 9 Am. Jur. 55-56, sec. 85.
Oscar E. Buder and Eugene H. Buder for respondents.
(1) The defendants owed the plaintiffs the duty of ordinary care to protect the plaintiffs' property from injury in performing the work; they failed to carry out that duty; and injury to plaintiffs' property was the proximate result. Flannery v. St. Louis Architectural Iron Co., 194 Mo. App. 555 , 185 S.W. 760; Swabey v. Boyers, 274 Mo. 332 , 203 S.W. 204; Curators of Central College v. Rose, 182 S.W.2d 145, appeal dismissed 323 U.S. 678 , 65 S.Ct. 269, 89 L.Ed. 550; State ex rel. St. Louis v. Laclede Gas Light Co., 102 Mo. 472 , 14 S.W. 974, 22 Am. St. Rep. 789; 38 Am. Jur. 662, sec. 20. (2) One who contracts to make repairs and performs the work in an unskillful or negligent manner is liable for the damage proximately resulting from improper performance, and which can be regarded as having been within the contemplation of the parties. Arkansas Machine
Boiler Works v. Moorhead, 136 Ark. 18 , 205 S.W. 980, 1 A.L.R. 1652; Case Note, 1 A.L.R. 1654; Case Note, 44 A.L.R. 824. (3) The written contract authorized defendants to stockpile the earth on the south half of the garage roof, but the contract by implication provided that the stockpiling should be done with ordinary care, and such implication was of course in no sense contradictory of the express terms of the contract. Authorities under Point (1) above; Defendants' Instruction 3. (4) The showing of custom as evidence of the applicable standard of care was highly proper, and was no contradiction of the express terms of the contract. Asbury v. Fidelity Natl. Bank Trust Co., 231 Mo. App. 437 , 100 S.W.2d 946 ; Brunke v. Missouri Tel. Co., 115 Mo. App. 36 , 90 S.W. 753; Gordon v. Kansas City So. Ry. Co., 222 Mo. 516 , 121 S.W. 80; Tuttle v. Kline's, Inc., 230 Mo. App. 230 , 89 S.W.2d 676 ; 2 Wigmore on Evidence, sec. 461, p. 489. (5) Custom shown for such evidentiary purpose need not be pleaded, nor its existence as such submitted to the jury. Asbury v. Fidelity Natl. Bank Trust Co., 231 Mo. App. 437 , 100 S.W.2d 946 ; Caldwell v. Payne, 246 S.W. 312; Brunke v. Missouri Tel. Co., 115 Mo. App. 36 , 90 S.W. 753; Texas P.R. Co. v. Behymer, 189 U.S. 468 , 23 S.Ct. 622, 47 L.Ed. 905. (6) Apart from such evidence of custom, the jury was to use its own judgment of what men of ordinary prudence would do in the circumstances, and it must have been clear to them that it is prudent when stockpiling on a collapsible structure to make a more or less even
distribution rather than to make a huge pile on a small part of the surface. Cameron v. Small, 182 S.W.2d 565; Grand Trunk Ry. Co. v. Ives, 144 U.S. 408 , 12 S.Ct. 679, 36 L.Ed. 485. (7) The petition pleads both breach of contract and negligence, and plaintiffs went to the jury solely on the theory of negligence, in the relation made by the contract, allowing all defenses derivative from the contract. 38 Am. Jur. 661, sec. 20; Tullgren v. Amoskeag Mfg. Co., 82 N.H. 268 , 133 A. 4 , 46 A.L.R. 380. (8) Where there is a breach of contract amounting also to negligence, plaintiffs may sue in tort, at least where the negligence complained of is active misfeasance, as it was in this case. Lahtinen v. Continental Bldg. Co., 339 Mo. 438 , 97 S.W.2d 102 ; Case Note, 12 L.R.A. (N.S.) 925. (9) The petition does not attempt to plead a modification of the contract, but does plead the practical construction placed on the contract by the parties, evidence of which would have been admissible, but was not forthcoming. Laclede Construction Co. v. T.J. Moss Tie Co., 185 Mo. 25 , 84 S.W. 76; St. Louis Gaslight Co. v. St. Louis, 46 Mo. 121 . (10) Even if the plan of work was defective, and such defective plan was the proximate cause of the damage, still defendants were liable therefor. Defendants received no representation from plaintiffs that the garage roof would hold up without shoring, and even if the roof would have failed had defendants used ordinary care in piling the earth without shoring, still defendants were liable, as a matter of law, for not having discovered the necessity of shoring and not having shored up the roof even if they had finished their work before the failure occurred. Day v. United States, 245 U.S. 159 , 38 S.Ct. 57, 62 L.Ed. 219; MacArthur Bros. Co. v. United States, 285 U.S. 6 , 42 S.Ct. 225, 66 L.Ed. 433; Webb-Boone Paving Co. v. State Highway Comm., 351 Mo. 922 , 173 S.W.2d 580 ; United States v. Spearin, 248 U.S. 132 , 39 S.Ct. 59, 63 L.Ed. 166; Simpson v. United States, 172 U.S. 372 , 19 S.Ct. 222, 43 L.Ed. 482; Davis' Admr. v. Smith, 15 Mo. 467 ; Ramsay G. Construction Co. v. Vincennes Bridge Co., 50 F.2d 600 . (11) And especially since the failure occurred shortly after they had begun their work. Case Note, 88 A.L.R. 797, 803, subd. IV; Stees v. Leonard, 20 Minn. 494 , 20 Gil. 448. (12) Assuming a defective plan of work, even if defendants were not liable for the resulting damage as a matter of law, still they were liable under the undisputed evidence of a custom among contractors to determine the feasibility of a general plan of work submitted to them. Beattie Mfg. Co. v. Heinz, 120 Mo. App. 465 , 97 S.W. 188; Bebb v. Jordan, 111 Wn. 73 , 189 P. 553, 9 A.L.R. 1035. (13) Plaintiffs were guilty of no contributory negligence. The plan of work was safe, but even if it was unsafe, it was the duty of defendants, and not plaintiffs, to have so discovered. Crawford v. Kansas City Stockyards Co., 215 Mo. 394 , 114 S.W.
1057; Langan v. St. Louis, I.M. S. Ry. Co., 72 Mo. 392 ; Willig v. C.B. Q. Ry. Co., 345 Mo. 705 , 137 S.W.2d 430 . (14) Plaintiff Allen was not negligent in not having objected to the work done as he saw it at five o'clock P.M. on the day before the sinking. 39 Am. Jur. 238-240, sec. 12. (15) Even if Allen was negligent in such manner, the instruction hypothesizing such negligence which was offered by defendants was properly refused, and the objection to such refusal has been abandoned on this appeal, since it is not raised in appellants' points or argument. Majors v. Malone, 339 Mo. 1118 , 100 S.W.2d 300 . (16) Nor has the point of Allen's alleged contributory negligence been preserved for review on this appeal by defendants' motion for a directed verdict or by defendants' motion for a new trial. Clay v. Owen, 338 Mo. 1061 , 93 S.W.2d 914 ; Greer v. Carpenter, 323 Mo. 878 , 19 S.W.2d 1046 ; Raifeisen v. Young, 183 Mo. App. 508 , 167 S.W. 648; Fruit Supply Co. v. C.B. Q.R. Co., 119 S.W.2d 1010. (17) Plaintiffs are not chargeable with expert knowledge of the structural strength of their building to hold up under extraordinary loads, which strength could have been determined only by an engineer, architect, or construction contractor. DeBolt v. Kansas City, Ft. S. M. Ry. Co., 123 Mo. 496 , 27 S.W. 575; Springfield Crystallized Egg Co. v. Springfield Ice
Refrigerating Co., 259 Mo. 664 , 168 S.W. 772. (18) There is no reversible error in plaintiffs' Instruction 1. Said instruction directs a verdict for plaintiffs on their cause of action only on the theory of the negligent piling of a large amount of earth on a narrow strip at the south end of the garage roof, and only if such negligence, if found, was the proximate cause of the damage, and only if plaintiffs were free of contributory negligence. It is not erroneous for omitting reference to defendants' contrary theories of the proximate cause, which were presented in other instructions. Coshow v. Otey, 222 S.W. 804; Lawbaugh v. McDonald Mining Co., 202 S.W. 617; Meadows v. Pacific Mut. Life Ins. Co. of California, 129 Mo. 76 , 31 S.W. 578; Bricker v. City of Troy, 315 Mo. 353 , 287 S.W. 341 . (19) Said instruction, by also requiring a finding that by their negligent piling defendants "greatly overloaded that portion of the garage roof on which they had piled such earth," does not rewrite the contract for the parties, because such required finding is tantamount to a finding of negligence, or is in addition to a finding of negligence, and ordinary care is required by the contract as construed by Instruction 3. Such language could only have made the submission unduly burdensome to plaintiffs. Raber v. Kansas City Rys. Co., 204 S.W. 739; Cameron v. Small, 182 S.W.2d 565. (20) Said instruction is not in conflict with defendants' Instruction 3. Authorities, Point (18), above. (21) A party may not be heard to complain of conflict between his own erroneous instruction and a proper one given on behalf of the adversary. Reardon
v. Mo. Pac. Ry. Co., 114 Mo. 384 , 21 S.W. 731; Hall v. Mo. Pac. Ry. Co., 219 Mo. 553 , 118 S.W. 56. (22) Said Instruction 1 is not erroneous for containing the hypothetical clause that defendants "negligently removed a large amount of earth from the north part of the roof of the garage." It could only have made the submission unduly burdensome to plaintiffs. Raber v. Kansas City Rys. Co., 204 S.W. 739; Cameron v. Small, 182 S.W.2d 565. (23) The court did not err in refusing defendants' offered Instruction E. Said instruction is erroneous. Crane v. Liberty Foundry Co., 322 Mo. 592 , 17 S.W.2d 945 . (24) Once the court had given Instruction 4, which directed a verdict for defendants if the plan of work was found defective, Instruction E, abstract to begin with, became wholly superfluous, in that the substance of it had already been given in a more forceful form. It is not necessary to repeat an instruction already given. Coshow v. Otey, 222 S.W. 804. (25) The court did not err in admitting evidence by plaintiffs' witnesses, Walter J. Simon and Neal J. Campbell, as to the custom of piling the earth so as to distribute the weight on the roof. Authorities under Point (4) above. (26) The verdict for plaintiffs on defendants' counterclaim follows automatically from the verdict for plaintiffs on plaintiffs' petition.