Steele Bros. v. Village of Baldwin

Burns, J.

Plaintiffs commenced an action to recover monies allegedly due for extra material, time, and labor required to improve the defendant’s water main system. The circuit judge who decided this matter concluded:

“After careful consideration of the pleadings, the exhibits and the testimony, it is the opinion of this court that plaintiffs have failed to prove by a preponderance of the evidence that they provided services or materials other than required by the terms of the contract. The services performed and the materials furnished by plaintiffs were set out in the plans and specifications which plaintiffs agreed to furnish for a lump sum in accepting the contract. The contract provided that any extras shall be ordered in writing by the defendant. * * * The defendant has paid for the only extra authorized in writing. The plaintiffs have clearly failed to produce any satisfactory proofs that any extras were performed for which they are entitled to additional compensation.

“Therefore, the plaintiffs’ bill of complaint is dismissed and a judgment of no cause for action is hereby entered.”

Plaintiffs appeal. The argument portion of plaintiffs’ brief bears no numerical or orderly relationship to their statement of questions involved. To commingie issues almost to the point of nonrecognition is ill-advised but, unfortunately, is an understandable procedure when considered in conjunction with the substance of the subject matter af.ffiand. All of the errors alleged in this case (with 2 procedural-like exceptions — one of which is not properly before this Court and the second of which is discussed infra) challenge the factual determinations of the trial court. •

While we sympathize with defendant’s position that most of plaintiffs’ assignments of error were not properly preserved, because of the factual nature of those assignments they of necessity were considered by the trial court and hence are properly before this Court. However, we find no reason to disagree with the circuit court’s findings.

GCR 1963, 517.1 provides:

“Findings of fact shall not be set aside unless clearly erroneous. In the application of this prirtciple regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it.”

The judge who rendered the opinion in this case was not the same judge^* who sat during the trial. Consequently, in arriving at our decision we have ignored that “regard” referred to in the above court rule, and yet we still conclude that there was no reversible error. The plaintiffs did not sustaih their burden of proof by a preponderance of the evidence.

The only other issue which merits comment is the circuit court’s alleged refusal to file a writteh opinion stating the reasons for denying plaintiffs’ motion for new trial. GCB. 1963, 527.7 requires a judge to sign and file, or dictate to the stenographer, a concise statement of his reasons for ruling on a motion for a new trial. The circuit judge in this case complied with the court rule by dictating a short opinion from the bench. The reasons stated in that opinion were sufficient to dispose of the argument asserted.

Affirmed. Costs to appellee.

J. W. Fitzgerald, P. J., and N. E. Fitzgerald, J., concurred. o

* The Honorable Rupert Stephens, Lake county circuit judge, died unexpectedly without rendering an opinion.