Fenner v. Bolema Construction Co.

330 Mich. 400 (1951) 47 N.W.2d 662

FENNER
v.
BOLEMA CONSTRUCTION COMPANY.

Docket No. 34, Calendar No. 44,981.

Supreme Court of Michigan.

Decided May 14, 1951.

George D. Stribley, for plaintiff.

William J. Balgooyen, for defendant.

DETHMERS, J.

Defendant appeals from a judgment of $1,730.72, entered on jury verdict, for services rendered by plaintiff. Defendant had a contract with the city of Muskegon for construction of a sewer. It entered into an arrangement with plaintiff under which it agreed to pay plaintiff at the rate of $5 per hour for a bucket and crane and 1 operator to do excavating on the job. Plaintiff testified that the agreement included the provision that excavating was to be done between sheeting; that when the job was begun difficulties and delays were encountered in placing the sheeting so that defendant determined to abandon that method and to pursue the opencut method; that thereupon a new agreement was made under which defendant agreed to pay plaintiff at the rate of $1 per foot for excavating by the opencut method; that the latter method required the removal of much more dirt and greater use of the crane by plaintiff; that afterwards defendant also requested plaintiff to do backfilling work with a bulldozer and agreed to pay therefor at the rate of 85 cents per foot; that plaintiff excavated the entire 1,080 feet through which defendant was obligated to the city to lay a sewer; that plaintiff did 400 feet of backfilling, at which time his workmen left the job. Judgment was for an amount representing the 1,080 feet of excavating and 400 feet of backfilling at $1 per foot and 85 cents per foot, respectively, plus interest. Defendant denied that the original agreement called for sheeting or that any substituted agreement was ever entered into in place of the original arrangement which called for excavating to be done at the rate of $5 per hour, and claimed that when the excavation was completed plaintiff agreed to do backfilling at $8.65 per hour and that, thus computed, there was due plaintiff the sum of $763.80, which amount was tendered as payment in full.

There having been a dispute as to the terms of the original agreement and as to whether a substituted agreement had been made, the questions in that regard were properly for the jury. Defendant contends that even though the existence of the substituted agreement, as claimed by plaintiff, were to be conceded, nevertheless plaintiff's right of recovery must still be under the original agreement because plaintiff's failure to complete the backfilling constituted a breach or the nonperformance of the substituted agreement. Defendant cites in this connection Burr's Damascus Tool Works v. Peninsular Tool Manufacturing Co., 142 Mich 417; Palmerlee v. Republic Acceptance Corp., 216 Mich 692; Stadler v. Ciprian, 265 Mich 252; Fricke v. Forbes, 294 Mich 375; and Mundhenk v. Liverpool & London & Globe Insurance Co., Ltd., 311 Mich 571. Each of these cases involved the compromise settlement of disputed claims and it was held that to constitute an accord and satisfaction there must be performance of the compromise agreement; otherwise, there is an accord only, without satisfaction. The cases are not in point here. Accepting plaintiff's claims, as the jury apparently did, there was here no compromise settlement of a disputed claim, no accord. Rather, when performance under the original contract became infeasible and undesirable for defendant he desired plaintiff to engage in a different operation for which it was agreed that plaintiff should be compensated in an amount to be arrived at by a different measure. The new agreement provided not only for a different payment by defendant to plaintiff, but also for the doing of different work by plaintiff. It was a deliberate abandonment and extinction of the future obligations, if any, of the parties under the old agreement. Under such circumstances, the rights of parties were thereafter fixed by the terms of the new agreement regardless of whether there was full performance, part performance or breach, and on no possible theory could they be held to be governed by the first agreement. Furthermore, the pleadings and proofs are to the effect that, under either agreement, plaintiff agreed only to accept so much per hour or per foot for excavating and backfilling. It nowhere appears that he agreed to excavate or backfill a specific number of feet or the entire job which defendant had under contract with the city and, hence, there is no basis for defendant's claim of breach or failure to perform on plaintiff's part. For the same reasons there was no error in submitting the case to the jury under instructions permitting them to find that the contract between plaintiff and defendant was one for work on a foot-to-foot basis rather than an agreement to complete the entire job which defendant had under contract with the city. Under the pleadings and proofs the court could not properly have done otherwise.

The mere fact that defendant's liability under the agreement as claimed by plaintiff is more than twice as great as it would have been under the agreement as claimed by defendant does not render a verdict based on acceptance of plaintiff's claims contrary to the great weight of the evidence. According to plaintiff's testimony, the new agreement caused him more work, relieved defendant of the delay and expense connected with placing sheeting, and permitted the work to be done in far fewer hours.

Affirmed, with costs to plaintiff.

REID, C.J., and BOYLES, NORTH, BUTZEL, CARR, BUSHNELL, and SHARPE, JJ., concurred.