Vila v. Riolo

DRAPER, J. This is an action for foreclosure of a mechanic’s lien. Plaintiffs claimed $8,302.61. The judgment allowed the lien for $2,400, and deducted an offset of $800 for deficiencies in the work done. Plaintiffs appeal.

By written contract dated June 6, 1955, plaintiffs agreed to build an addition to defendants’ house “as per plans and changes and whatever changes owner wants. We agree to do this work on a cost plus basis.” The contract specified charges to be made for overhead and profit, and concluded "total cost is not to exceed $8,000."

The peculiarity of this agreement (drawn by plaintiffs without consulting an attorney) did not end with its drafting. The evidence discloses that the plans to which it refers were altered, partly by interlineation and partly by oral agreement, before the contract was signed. Changes from these modified plans were thereafter made in course of the work. At the conclusion of the job, plaintiffs claimed, on the cost plus basis, a total of $14,302.61, of which $6,000 had been paid. Defendants asserted that the $8,000 maximum applied, and that therefore only $2,000 remained due. They further asserted damages allegedly resulting from defects in the work done and failure to complete portions of the work.

On the first day of trial, a question arose as to application of the parol evidence rule. The question whether the contract was ambiguous, so as to permit parol evidence to explain its [180]terms, was then submitted on briefs. When trial resumed, almost 14 months later, it appears that the trial court had ruled the contract to be unambiguous. Nonetheless, the trial court received all evidence offered as to any and all conversations both before and after execution of the agreement. No such evidence was excluded. No offer of proof was made as to any other parol evidence and detailed study of the transcript leaves us unable to conceive of any other parol evidence which could have been offered.

Under these circumstances, plaintiffs cannot and apparently do not contend that they were in any way prejudiced by any exclusion of evidence. They do, however, assert that the findings, in the light of the court’s expressed opinion that the contract was unambiguous, must be construed to show that the court erroneously based its decision on the theory that the written contract required plaintiffs to perform all work requested by defendants for the maximum price of $8,000. It is unnecessary for us to determine whether the agreement was in law unambiguous on its face, for we have concluded that plaintiffs’ view of the findings is untenable.