Cunningham v. Weaver

PEEK, J. This is an appeal by defendants from a money judgment and decree of foreclosure of a mechanic’s lien.

Plaintiff’s complaint alleged that the parties entered into an oral contract by which plaintiff was to furnish certain materials, labor and supervision in the construction of a building for defendants, for which they agreed to pay the reasonable cost; that defendants had paid only a portion of said cost, and that a balance was still due and unpaid. Defendants’ answer denied the material allegations of the complaint, and affirmatively alleged that plaintiff verbally agreed to complete the construction work for an agreed sum but admitted that a balance was still owing plaintiff.

[788]Defendants now contend that the evidence does not support the finding that they agreed to pay plaintiff the reasonable value of the work, labor and materials furnished rather than an agreed sum, and that the court erred in finding that plaintiff was entitled to recover for certain items set forth in the bill of particulars; to wit, equipment rental, various taxes and insurance, an overhead fee of 15 per cent and a contractor’s fee of 10 per cent.

The record shows without contradiction that all negotiations and the resulting contract were oral, but the evidence as to the nature of the contract is in direct conflict. According to plaintiff’s testimony, the parties agreed upon a cost-plus contract which specifically included materials costs, costs of transportation, office expense, equipment rentals, an overhead fee of 15 per cent and a contractor’s fee of 10 per cent. He further testified that in order for a contractor to make a firm bid, it is necessary for him to have complete plans and specifications from which estimates can be taken. Here, however, he was working from floor plans only, and hence a cost-plus arrangement was the only one possible. In support of his contention that this was understood by defendants, plaintiff introduced in evidence a letter addressed to the National Production Authority by defendants concerning their application for certain scarce materials. In that letter defendants specifically stated that plaintiff was building the structure for them “on a cost plus basis.” Subsequent to defendants’ going into possession, a disagreement arose between the parties concerning the balance due. In an apparent endeavor to settle their difficulties, plaintiff agreed to accept a lump sum in full settlement of all amounts he contended were due if defendants, within a specified time, could raise the money. Defendants made no objection to the amount quoted by plaintiff and agreed to endeavor to meet plaintiff’s request; in fact they did make an unsuccessful attempt to raise the amount. Following defendants’ failure to pay the sum requested, plaintiff filed the customary notices and instituted the present proceeding. Vouchers showing the cost of construction were not totaled by plaintiff until after suit was filed. A bill of particulars, filed at defendants’ request, showed a balance then due in the sum of $24,251.80. Such statement reflects materials furnished by defendants and paid for by them, as well as payments they made to some of the subcontractors. Plaintiff’s testimony that the standard procedure in a cost-plus contract was to charge for the items previously mentioned was