# J. E. Hathman, Inc. v. Sigma Alpha Epsilon Club of Columbia

> Supreme Court of Missouri · March 12, 1973 · 491 S.W.2d 261

URL: https://www.frixlaw.com/law-library/cases/9648390

## Case

- **Full name:** J. E. HATHMAN, INC., a Missouri Corporation, Appellant, v. SIGMA ALPHA EPSILON CLUB of Columbia, Missouri, a Missouri Corporation, and E. Paul Smith, Trustee, St. Louis Federal Savings and Loan Association, Respondents
- **Court:** Supreme Court of Missouri
- **Decided:** March 12, 1973
- **Citations:** 491 S.W.2d 261; 1973 Mo. LEXIS 805
- **Precedential status:** Published
- **Opinion:** Dissent by Donnelly
- **Judges:** Finch, Seiler, Holman, Bardgett, Jj-, Donnelly, Henley, Morgan
- **Cited by:** 209 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9648390

## How later opinions describe it (automated extraction)

- finding that a contract is not ambiguous merely because the parties disagree over its meaning

## Opinion text

DONNELLY, Judge
(dissenting).
I respectfully suggest that the principal opinion decides this case by answering the wrong question. It is not important here whether the words “Estimated maximum cost” are ambiguous. The determinative *269 question is whether the insertion of all of Article 3A renders the contract ambiguous as to what the parties intended the cost of construction should be. I believe it does. If it were not there, Article 5 would stand uncontradicted and the contract would be certain as to cost. The mere presence of Article 3A in the contract makes the contract ambiguous as to cost.
The principal opinion’s reliance upon the case of Kalen v. Steele, Mo.App., 341 S. W.2d 343 (1960), is misplaced. In Kalen , the homeowners sought to rely on a “cost sheet” attached to the contract in support of their contention that there was an agreement to pay a fixed price for costs of construction. The Kansas City Court of Appeals disagreed, holding the contract unambiguous as to costs of construction because the “cost sheet” related only to the contractor’s fixed fee. The Court said ( 341 S.W.2d 343, 347 ): “The cost sheet obviously is the contractor’s estimate of what the cost of the listed items of material and labor to be used in constructing the house will be. It is the basis for the figure used in the contract in Section 4 for the determination of a fixed fee of the contractor for his services. It does not contradict, modify, change or make uncertain the clear, unequivocal provisions of Section 5 which provide, in addition to the fixed contractor’s fee contained in paragraph 4, for the contractor to be reimbursed all his necessary expenses for material, labor, etc., in constructing the house.”
In my opinion, Article 3A contradicts, modifies, changes and makes uncertain the provisions of Article 5. The insertion of Article 3A in the contract renders the contract ambiguous as to cost. The trial court did not err in considering extrinsic evidence to ascertain the intention of the parties. I would affirm the judgment.
I dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9648390. Public record. Not legal advice.