Opinion
No. 14258.
May 25, 1976.
Appeal from the Third District Court, Tooele County, Gordon R. Hall, J.
E. Nordell Weeks of McMillan Browning, Salt Lake City, for defendants and appellants.
Edward A. Watson, Tooele, for plaintiffs and respondents.
Appeal from a judgment for excavating work on a home building project. Affirmed in part and reversed in part, with no costs on appeal.
Defendant Gibb asserts that the judgment against the defendant, Beneficial Homes, was unsupported by the evidence, with which we agree, and it is ordered that such judgment against Beneficial be vacated.
The trial court conceded that process had not been served on Beneficial Homes, and this conclusion is born out on the Sheriff's return where the cost of service is shown to have been for service on only one of the named defendants.
Gibb also urges that there was no evidence that there was any contract between plaintiffs and Gibb, but only with Beneficial through Gibb as an officer thereof. The record impels us to disagree with such contention, and we affirm the judgment against Gibb.
Gibb also complains that the contract was for a price per lot. Uncontroverted testimony showed the price agreed upon at the outset was $100 per lot and that there were 35 lots, — totalling $3,500. Plaintiffs, because of rising prices attempted to change the price to a $15 hourly basis, to which Gibb would not agree. He conceded, however, that based on an hourly charge, the amount would come to $3,515, — a $15 difference. There is something certain in the record as to charge by lot, and there is uncertainty as to any hourly base. The judgment against Gibb alone is affirmed.
ELLETT, CROCKETT, TUCKETT, and MAUGHAN, JJ., concur.