Summary
In Rotsko, the court found that the contract unambiguously was a "not to exceed" contract in which the plaintiff agreed to construct the defendant's house at a guaranteed maximum price of $300,000, despite the fact the plaintiff billed the defendant on a time and materials basis.
Summary of this case from RMS of Wis., Inc. v. S-K JVOpinion
November 15, 1995
Appeal from the Supreme Court, Chautauqua County, Ward, J.
Present — Pine, J.P., Lawton, Callahan, Balio and Davis, JJ.
Amended judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: In this action to foreclose a mechanic's lien, Supreme Court's conclusions that plaintiff has a valid mechanic's lien on defendant's property, is entitled to a judgment of $135,386.24 plus interest, and is entitled to enforcement of his mechanic's lien, could not have been "`reached under any fair interpretation of the evidence'" (Thoreson v Penthouse Intl., 179 A.D.2d 29, 31, affd 80 N.Y.2d 490) and must be set aside.
The proof establishes that the agreement of the parties, memorialized by plaintiff's letters to defendant dated October 11, 1990 and March 22, 1991, was a "not to exceed" contract, whereby plaintiff agreed to construct defendant's residence at a guaranteed maximum price of $300,000. Contrary to the conclusion of the court, the contract is neither ambiguous (see, Tigue v Commercial Life Ins. Co., 219 A.D.2d 820) nor did it evolve into a "time and materials" contract. While plaintiff billed defendant on a time and materials basis, he acknowledged that he agreed to construct defendant's residence within the $300,000 budget. Thus, plaintiff's recovery is limited to the amount set forth in the parties' agreement.
The court's dismissal of defendant's counterclaims "for insufficient proof" is supported by the record.
Therefore, we modify the amended judgment on appeal by deleting therefrom those portions awarding plaintiff judgment against defendant, determining that plaintiff has a valid mechanic's lien, and directing enforcement of the lien by foreclosure.