Opinion
August 10, 1951. On Rehearing November 9, 1951.
Appeal from the Circuit Court for Polk County, Don Register, J.
Raymond C. Smith, Lakeland, for appellant.
William K. Love, Lakeland, for appellee.
Affirmed.
SEBRING, C.J., and CHAPMAN, ADAMS and ROBERTS, JJ., concur.
On Petition for Rehearing.
The parties to this suit, on July 7, 1948, signed a contract for the construction of a home or dwelling on described land of the defendants-appellees at an overall price not to exceed $10,000, which sum would include 10% to be paid by the owners to the contractor for the construction thereof. Pertinent portions of the contract between the parties are viz.:
"The owner shall pay the contractor for the performance of the contract, subject to additions and deductions provided therein, in current funds, the full sum of the cost of the work to the contractor, together with an additional sum equivalent to 10 per cent thereof. Said payment shall be made to the said contractor as and when the work progresses and the contractor furnishes satisfactory evidence that the advances for costs requested by the contractor have been incurred. Such advance payments shall not exceed 80 per cent of the amount to which the contractor shall be entitled. However, in no event shall the full sum of cost, together with the 10 per cent above called for, exceed the sum of Ten Thousand Dollars ($10,000.00), it being expressly agreed and understood that the maximum sum under this contract payable by the owner to the contractor shall be Ten Thousand Dollars ($10,000.00)."
"Where the quantities originally contemplated are so changed that application of the agreed unit price to the quantity of work performed is shown to create a hardship to the owner or the contractor, there shall be an equitable adjustment of the contract to prevent such hardship, however, the compensation to the contractor for such additions shall be based on cost plus 10 per cent.
"It is understood and agreed that should any materials listed in the plans and specifications be unavailable, the owner and the contractor agreed that in the event of any substitutions of materials, the contractor shall allow to the owner the difference in cost between the substituted material called for and specified in reductions of the contract price as herein stated; and should any substituted material cost more than the material called for in plans and specifications, the owner shall pay unto the contractor such additional sum as may be represented by the difference between the cost of the material substituted and the material specified."
It appears by the allegations of the amended bill of complaint that the owner of the building, after signing the aforesaid contract and after the construction started, ordered and directed the contractor to make several changes and alterations in the proposed building which increased the costs thereof above the $10,000 maximum figure named in their contract. The work was completed by the contractor, when the owner refused, it is alleged, to pay for the costs of the changes or alterations of the building as agreed upon between the parties after the written contract was signed.
The defendants-appellees answered the bill of complaint and the cause was referred to a special examiner and testimony was taken by the respective parties. On final hearing a decree was entered by the Chancellor below and an appeal therefrom has been perfected here. It is contended that the decree was erroneous in that it failed to conform to the written agreement of the parties under which the home was constructed.
The final decree recites that the maximum cost of the building was not to exceed $10,000 and the contractor sub-contracted certain items on the construction amounting to some $4,000 and it was not the intention of the parties that the contractor should be paid 10% on the overall costs of the work performed by the sub-contractor as it "would constitute double profits on all sub-contract work." Then we observe the following language of the final decree: "Taking into consideration the foregoing matter and the further observation of the lack of competent evidence to show that any particular item of material went into this particular job or to show any itemized statement as to items of labor or material that went into the job * * * makes it impossible for the Court to accurately arrive at a proper amount, if any, to be paid the contractor-plaintiff." (Emphasis supplied).
We are in full accord with the views of the able Chancellor, after a careful consideration of the entire record, as expressed in the following language of the final decree: "* * * impossible for the Court to accurately arrive at a proper amount, if any, to be paid the contractor." We feel under the peculiar circumstances of this case, that the ends of justice require that the decree appealed from be reversed with directions to the lower Court to enter an order re-referring the cause to a special examiner with directions to allow or give the respective parties an opportunity to adduce further and additional testimony pertinent to the issues.
Hence, our previous order of affirmance is set aside, receded from and declared invalid and the petition for rehearing is granted, and upon further consideration the final decree appealed from is reversed with directions, supra.
SEBRING, C.J., and CHAPMAN, ROBERTS, and MATHEWS, JJ., concur.