Fereria v. Nunn

DOOLING, J. Plaintiff appeals from a judgment in favor of defendants. Plaintiff is a building contractor who constructed a home for defendants. He sued on a quantum meruit [368]for work and labor in the sum of $8,967.62. Defendants alleged that the home was constructed under a written contract for an agreed price of $4,797. On this issue the trial court found in favor of defendants and plaintiff’s main contention is that the evidence does not support this finding.

The evidence shows that defendants had seen a home in Orinda of which they obtained the plans and a home in Richmond which they also liked. Plaintiff at their request examined the Richmond home and drew plans for a house not quite identical, but similar. Defendants were uncertain which house to build and plaintiff submitted in the form of an unsigned letter, on his letterhead, alternate bids, which letter was signed by defendant Beatrice Nunn. Defendants instructed plaintiff to construct according to the Orinda plans but after the foundation was staked it was discovered that the stakes extended beyond the boundary of the lot and the parties agreed to build according to the plan drawn by plaintiff from the Richmond house. As to that plan the writing provided:

“Plan No. 1 on same as Richmond House with 2 car garage 18 x 20, the house floor area of 1066 ft. No tile work and finish of all sidewalks or cement floors also front to rear porches are included in this bid of $4797.00 with one furnace. ’ ’

The house as planned called for a detached garage, but as built the house was raised so as to have a basement in which the garage was placed. Mrs. Nunn testified as to this change in plan:

“Well, he (plaintiff) showed me plan number one and asked me if that’s what I wanted, and I said, ‘Well, we’ll have to do it on this lot. ’ ... so he suggested that we would put the garage under our house, which I didn’t want to do. But he said it would save me money. He said it would save for all the rest of the things in the basement—finish the basement, put a sidewalk in the front and extra things I had asked about, because he said a double garage would take a roofing, siding, two windows and an extended longer driveway. So by putting it under the house it would make it cheaper for me, which we agreed upon doing.”

Plaintiff testified that by reason of this and other changes demanded by defendants he informed defendants that he could not build for the agreed price but would .have to charge on a cost-plus basis. This was flatly denied by Mrs. Nunn, who testified: