Walter E. Stamm and Doris Stamm v. John P‪.‬

This suit arose out of a contract in which defendant agreed to install a roof on a new residence that plaintiffs, husband and wife, were constructing. The evidence of both parties is that after installation the roof leaked in numerous places, and that the defendant, over a period of time, was unsuccessful in his efforts to stop the leaks. Plaintiffs had another roofer remove the original roof and install a new one, and brought this action to recover damages. The jury returned a verdict in favor of plaintiffs for $5,000, on which judgment was entered, and after an unavailing motion for a new trial defendant appealed. There is a sharp dispute between the parties as to the nature of plaintiffs' action. In their one-count petition plaintiffs alleged both that defendant breached an express warranty and that defendant negligently and carelessly installed the roof. Prior to trial defendant raised no objection to the petition. At the request of plaintiff the court gave Instruction No. 3, by which the jury was instructed that its verdict must be for plaintiffs if it believed that defendant failed to install a gravel stop with a four inch flange, or installed the roof in such a manner that the roofing material buckled or bubbled, that defendant's conduct in either or both respects was negligent, and that as a direct result of such negligence plaintiffs sustained damage. But while defendant asserts that plaintiffs' cause of action sounded in contract rather than in tort (compare State of Missouri ex rel. Cummins Missouri Diesel Sales Corporation vs. Eversole, Mo. App., 332 S.W.2d 53 and Wernick v. St. Louis & S.F.R. Co., 131 Mo. App.37, 109 S.W. 1027), nevertheless defendant does not complain that the court erred in giving Instruction No. 3. Nor does he dispute the sufficiency of the evidence to support the verdict, for in his brief he concedes: ""Defendant does not question that the jury's verdict, with respect to liability, (emphasis his) is supported by substantial evidence. * * *"" In fact, by his statement that, ""* * * The only issue on appeal relates to the amount of damages awarded"" defendant with commendable brevity and clarity limits the scope of our review.