Eby v. Bensemon

BISHOP, J. pro tem.* The plaintiff has appealed, feeling aggrieved by the judgment for $1,034.65, when he had prayed for one awarding him $3,184.60. His action was based upon a written contract in which he undertook to remodel defendants’ store and they agreed to pay him therefor “Cost plus 10%.’’ He alleged that the cost plus 10 per cent was $15,216.68 of which $12,032.08 only had been paid. The trial court held that plaintiff had improperly included in his costs three items: (a) the premiums paid for workmen’s compensation and public liability insurance; (b) charges for his overhead and (e) too great a sum in satisfaction of his obligation to his electrical subcontractor. These three items, together with 10 per cent on one of them, totalled $2,149.95, the amount by which plaintiff’s judgment disappointed him. We are reversing the judgment because we are satisfied that the amount plaintiff paid for workmen’s compensation and public liability insurance should not have been deducted in figuring the basis for his compensation, and a reversal, rather than modification, better serves the interests of justice.

The parties used a printed form for their agreement, subdivision numbered 3 reading: “In consideration of the covenants and agreements hereof being strictly performed and kept by Contractor, including the supplying of all labor, materials and services required by this Contract, and the construction and completion of the structure, Owner agrees to pay to Contractor the sum of Cost Plus 10% in installments as follows.- Payments as job progresses.” We have emphasized the typewritten words inserted in blanks left in the printed form.

The plaintiff had a blanket workmen’s compensation policy, covering his operations, and a like public liability policy. As to the former, the premiums he had to pay were directly [758]related to Ms payroll, which he reported quarterly. His testimony was that $242.11 was paid for premiums on these insurance policies as they pertained to defendants’ job.

The theory on which this sum was eliminated from plaintiff’s claim was based, as we understand it, on this opening sentence of the fifteenth subdivision of the contract: “15. Contractor shall at his own expense carry all workmen’s compensation insurance and public liability insurance necessary for the full protection of Contractor and Owner during the progress of the work. ’ ’ In his written opinion, filed as a helpful guide to counsel for the preparation of findings of fact, the trial judge found “that the item of $242.11 . . . cannot be allowed because and for the reason that the plaintiff is not entitled to be reimbursed for premiums paid for workmen’s compensation and public liability insurance which he specifically assumed to carry at his own expense under Section 15 of the contract. ...”