Davenport & Co. v. Spieker

Opinion

MERRILL, J.

The Spiekers, Mr. and Mrs. Warren Edward Spieker, Jr.,

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appeal from a judgment awarding damages in the sum of $14,350, plus interest, to Davenport & Co., Inc. (Davenport) for breach of a construction contract.

I

The parties entered into a written contract which provided that Davenport, a licensed general contractor, would construct a cabana and a garage on the Spiekers’ residential property. The contract provided that Davenport was to perform the work in accordance with drawings prepared by the Spiekers’ architect and changes to those drawings made by the Spiekers. Some changes to the drawings were excluded from the contract price and

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would be charged to the Spiekers as “extras.” The parties agreed that the price for the work specified in the contract would be on a time and material basis, plus a 15 percent fee, not exceeding $130,000. In the event that the work described in the contract cost less than $130,000, the Spiekers would only be billed the actual cost plus 15 percent. Any changes or additions to the contract would be charged as extras. The contract also provided that changes would not be made without the Spiekers’ approval. There was no explicit provision in the contract requiring change orders to be in writing.

Davenport began construction on the Spiekers’ home in October 1984 and completed it in May 1985. During the construction, the Spiekers made substantial changes which increased the scope of the work to be performed and the compensation due Davenport. They ultimately paid Davenport a total of $178,623 for the work performed pursuant to the initial contract and for the extras. However, Davenport claimed that $37,331 was still unpaid for extra work performed on the Spiekers’ residence.

At the court trial in this action, evidence was presented as to the cost of the contract work and the cost of the extras. Copies of the weekly invoices mailed to the Spiekers, indicating the costs for all materials, suppliers, subcontractors, labor and miscellaneous services provided, were admitted into evidence. Also admitted into evidence was a compilation of the costs incurred as of April 4, 1985, and a projection of costs yet to be incurred. The Spiekers requested further delineation of the cost of extra work, so an additional document was prepared outlining all the changes performed and their respective costs. Such document was also received in evidence. Mike Mclnnis, the job supervisor, and Mac Mclnnis, Davenport’s president, prepared the document from the following: Mike Mclnnis’s daily record of each change requested by the Spiekers, material invoices, subcontractor invoices, and employee timecards. The labor cost for each item of extra work was determined by a review of the timecards and by multiplication of the number of man-hours by the average labor rate. In those instances where the carpenter or laborer failed to designate the amount of time spent on the extra work, Mac Mclnnis estimated the labor cost. He testified that he had 10 years of construction experience and that he provides estimates for all the jobs on which Davenport submits bids.