Brockman v. Werner ( 1922 )

The following opinion was filed February 7, 1922:

Vinje, J.

Since a new trial must be had upon a new basis many of the questions argued drop out. The case presents almost exclusively questions of fact, and all the findings of the learned trial court are sustained except the one that finds that the original contract for a one-story building without a basement for cost-plus not to exceed $32,090 was abrogated when the agreement as to the second story was entered into. We need not go into all the details as to how plans were suggested, modified, and abandoned before the contract mentioned was entered into. Both parties admit the execution of the first contract, which was in writing and was based upon plans and specifications furnished by Mr. Koch, plaintiff’s employee and architect. When the construction of the first story was under way but before it had progressed far, negotiations for the addition of a second story and basement began, and it is the claim of defendants that plaintiff agreed to build the second story, not including some extras such as elevator, etc., for approximately $19,000. This claim is based upon a conversation that Werner and Sims had with Koch, in which the latter furnished a rough estimate, based upon an estimated cubic foot price, at $24,000, which later Werner claims was reduced to $19,000. Koch denies he ever furnished any estimate for $19,000, much less agreed on-behalf of plaintiff to build the second story for approximately such amount. His testimony is that Werner came back the next day after the $24,000 estimate was furnished and that he and Werner had some further talk about the building and the second story and basement and that finally Werner said, “Well, I guess you better go ahead,” and that Koch then said, “That will be on a percentage basis?” and that Werner answered, “Sure, that is the better way anyhow.” This sums up the substance of the direct testimony on the subject. The trial court saw the witnesses, and it was peculiarly within his discretion to judge as to who was the more credible. There are a number of considerations that lead us to believe that no' oral contract to construct the second story for approximately $19,000 was ever made. In the first place that is not a usual way to transact business of such magnitude, especially where, as here, there is no evidence as to just how the second story should be constructed either as to materials, partitions, openings, or otherwise. In the second place it is uncontradicted that plaintiff from time to time consulted with defendants as to the mode of constructing the second story, as to the size of girders that should be used for the roof, and as to what firm to purchase them from. Many changes in the plan of the first story and foundation walls had to be made and defendants were consulted with reference thereto. We have no doubt that, even if an estimate for $19,000 was made, it never ripened into a contract between the parties. The evidence as to what kind of a second story should be built is too vague to support a contract with reference thereto. The trial court properly found that no such contract was ever made.

But we think it erred when it found that the agreement to build the basement and second story upon a cost-plus basis abrogated the written contract to build the first story at a cost not to exceed $32,090. It is true that a number of changes had to be made in the first story owing to the addition of a basement and second story, but such changes, in so far as they increased the cost, would be extras to be paid for on cost-plus basis, and in so far as they decreased the cost, as for instance the omission of a roof, such decreased cost should be credited to the defendants.

The evidence, was not taken upon this basis and we find it impossible to state the account as it should be stated. It is held that the plaintiff can recover for the first story, exclusive of changes therein, extras and basement, the cost plus fourteen per cent., not to exceed $32,090; that for the balance of the building, including the wrecking of the old building, he is entitled to recover the cost plus fourteen per cent., less credits for old material used as found by the court, and that for the balance he should have a lien as granted in the judgment appealed from. The evidence showed that fourteen per cent, was a reasonable percentage of profit and that amount is not contested by the defendants.

There is some evidence from which it may be inferred that the cost-plus basis should apply to the whole building, but it is not definite and certain enough to have the effect of canceling the written contract between the parties.

It follows that the judgment must be reversed, and the cause remanded for the taking of further evidence, and judgment as indicated in this opinion with costs in favor of defendants.

By the Court. — It is so ordered.

A motion for a rehearing was denied, with $25 costs, on April 11, 1922.