Opinion
September 8, 1965 —
October 5, 1965.
APPEAL from a judgment of the circuit court for Milwaukee county: RONOLD A. DRECHSLER, Circuit Judge. Reversed and remanded.
For the appellants there was a brief by Love, Davis, McGraw, Huber Brown of Waukesha, and oral argument by Robert T. McGraw.
For the respondent there was a brief by Grootemaat, Cook Franke, attorneys, and Robert E. Cook and Thomas J. Drought of counsel, all of Milwaukee, and oral argument by Robert E. Cook.
The defendant, Nick Chenenoff, was engaged by the St. Francis school board to construct a new high school. To carry out his duties, the defendant builder entered into an equipment rental agreement with the plaintiff, Stack Construction Company, on October 13, 1961. Stack's equipment was brought onto the jobsite, and daily time tickets were submitted by Stack as a basis for determining the amount due. Periodic invoices were sent to Mr. Chenenoff under such agreement, and partial payments were made.
On November 29, 1961, Stack received a site plan (the November plan) from Mr. Chenenoff with a request to submit a bid for grading the entire site. Stack estimated the job based on the November plan and submitted the following proposal:
"We estimate a cut of 107,000 cubic yards including the building areas and a possible fill of 86,000 cubic yards.
". . .
"Grade the entire site by using the fill on the play field and other low spots of the site:
"107,000 cubic yards @ thirty one cents ($0.31) per cubic yard — 33,100.00.
"21,000 cubic yards loaded and trucked from site at extra eighty ($0.80) cents per yard — 16,800.00.
"The above total price would be guaranteed and the charges made up to the date of this acceptance would be credited against the above total of $49,900.00.
"The above price does not include the finish grading or placing of topsoil on the areas to be landscaped."
Mr. Chenenoff accepted this bid on December 19, 1961, and then submitted his proposal of $55,000 to the school board. This included the work which he believed Stack proposed to do for him for $49,900 plus the cost of spreading the topsoil, estimated at approximately $5,000. The school board accepted this proposal on December 26, 1961.
On January 4, 1962, the plaintiff received a second site plan for the grading work, dated December 8, 1961 (the December plan), which differed in material respects from the November plan. Stack advised Mr. Chenenoff of the additional work which would be required under the December plan. Mr. Chenenoff testified that the December plan never went into effect, was never approved by the architects, and that the major difference between the grading that Stack actually performed and that which was called for under the November plan was a result of two extra contracts made in May, 1962. The plaintiff has been paid $7,704.75 for the two extras, and such contracts are not directly in dispute.
Mr. Holmes, the architect for the school, testified that the December plan was issued by his office as a contemplated grading proposal but that when he learned of the additional cost which would be involved he told Mr. Chenenoff in the presence of a representative of the Stack Construction Company to proceed according to the original November plan.
Mr. Stahoski, the president of Stack, testified that he did not know which plan Mr. Chenenoff was using, since it was Mr. Chenenoff's foreman who was laying out the work, but that Stack did not use the December plan. Stack's grading foreman, Mr. Banaszak, acknowledged that the majority of the grading performed by Stack was done in conformity with the November plan and that the major difference between what Stack did in the way of grading and the written contract was a result of the two extra contracts made in May, 1962.
Work was completed in June, 1962. In its complaint, Stack claimed that the reasonable value of its services totaled $61,017 for the period from October, 1961, to June, 1962. Mr. Chenenoff had made payments to Stack totaling $37,404.75, leaving a balance due of $23,612.25 based on the time rental invoices.
Stack commenced this action to recover the sum of $23,612.25 for labor and services performed for Mr. Chenenoff. Alternatively, Stack contended that the written contract controlled the relationship between the parties and alleged that under this contract Mr. Chenenoff was to pay Stack a total of $49,900 and there remained due and owing after partial payments by Mr. Chenenoff the sum of $20,200.
Stack denied that the sum of $16,800 (arrived at by multiplying 21,000 cubic yards at $0.80 per yard) was to be paid to it only if it "loaded and trucked soil from the site", Stack took the position that the $49,900 was an indivisible figure.
Mr. Chenenoff argued that the contract called for payment of the $16,800 only if the 21,000 cubic yards were loaded and hauled from the site and, since they were not, this amount could not be recovered. He supported this allegation by pointing out that the $0.80 per yard was a premium rate and was to be paid only for a special service. It is undisputed that there was no excess soil loaded and hauled from the site.
The trial court found that the written contract between the parties had been modified, that such modification was not the fault of the plaintiff, and that, although he did not actually load and truck any excess from the site, he was required to do more work; therefore, the trial court ruled that the recovery would be based on the original contract price of $49,900 minus the payments made by Mr. Chenenoff, leaving a balance of $20,200.
Mr. Chenenoff counterclaimed for defective performance by Stack. The trial court found no merit in such counterclaim.
Mr. Chenenoff appeals from the trial court's award of damages and the denial of his counterclaim.
The testimony establishes with clarity the fact that the fill which under the contract was to be "loaded and trucked from site at extra of $0.80 per yard" was not actually loaded or carried away. This phase of the work was simply not performed. The trial court recognized this fact but nevertheless concluded that the plaintiff "should not be penalized" because of it.
The record establishes that more than 107,000 cubic yards were actually cut by the plaintiff, and it is entitled to compensation for such work. However, we are unable to accept the trial court's conclusion that such additional work should be paid for at the premium price of $0.80 per cubic yard. The nature of such additional work was clearly not comparable to that for which the contract price was established in the sum of $0.80 per cubic yard.
The written contract, which arose when Mr. Chenenoff on December 19, 1961, accepted the plaintiff's bid based on the November plan, was never formally altered. While there was a new site-grading plan dated December 8, 1961, the record establishes that it was not adopted by the parties, and, thus, the new plan cannot be construed as representing a modification of the original contract.
The original contract is not ambiguous in its terms, and it is the court's duty to construe it as it stands. George J. Meyer Mfg. Co. v. Howard Brass Copper Co. (1945), 246 Wis. 558, 574, 18 N.W.2d 468. Nevertheless, the plaintiff did not perform all the work called for under the contract, and this appears to have been acceptable to the defendant. Under such circumstances, there is no sound basis for granting recovery to the plaintiff for work it did not perform at rates which contemplated special duties which never materialized.
There were, however, added services which were not expressly provided for in the contract but were nevertheless performed by the plaintiff and for which the defendant should reasonably have recognized his obligation to pay. Fieldhouse Landscape v. Gentile (1961), 12 Wis.2d 418, 107 N.W.2d 491; Estate of Beilke (1953), 263 Wis. 372, 57 N.W.2d 402; Estate of St. Germain (1945), 246 Wis. 409, 17 N.W.2d 582; Wojahn v. National Union Bank (1911), 144 Wis. 646, 129 N.W. 1068.
It is undisputed that 107,000 cubic yards should be paid for at the contract price of $0.31 per cubic yard. However, Stack claims that it moved approximately 155,000 cubic yards of dirt as of June 18, 1962, as reflected in the following testimony of its president, Mr. Stahoski:
" Q. And how did you arrive at this number of 155,000 cubic yards?
" A. By our original calculations that we had based on November 27th, which was 107, plus 20, which is 127,000 yards, which had to be moved and — it was left on the site; and we moved another 23,000 yards between the sidewalk — between the property line and the curbing, and we moved about 5,000 cubic yards of topsoil, which amounts to 155,000."
Based on the above figures, it would appear that there remain 48,000 cubic yards of dirt for which there must be an accounting. Mr. Chenenoff claims that of these remaining cubic yards, 28,000 cubic yards were the result of two extra contracts entered into in May, 1962, for which he paid Stack the sum of $7,704.75.
Mr. Chenenoff also refers to the testimony of Stack's foreman, Mr. Banaszak, to the effect that the major difference between the actual work done (155,000 cubic yards) and the November plan (128,000 cubic yards) was a result of the two extra contracts entered into in May, 1962. However, the record is not completely clear that 28,000 of the 48,000 cubic yards were represented by the two extra contracts in May, 1962.
Mr. Chenenoff alleges that the compensation for only 20,000 cubic yards remains undetermined and that the payment thereon should not be evaluated at the premium rate of $0.80 per cubic yard because these 20,000 cubic yards did not involve premium work.
As noted in Mead v. Ringling (1954), 266 Wis. 523, 528, 64 N.W.2d 222, 65 N.W.2d 35, there is an implied promise on the part of Mr. Chenenoff to pay under quantum meruit the reasonable value of the services to the plaintiff which were involved in Stack's cutting more than the 107,000 cubic yards, exclusive of the work done under the two extra contracts of May, 1962. See Barnes v. Lozoff (1963), 20 Wis.2d 644, 652, 123 N.W.2d 543.
The nature of the work performed by the plaintiff relative to such 20,000 cubic yards (assuming that to be the correct amount) would appear to be somewhat related to that which was done with reference to the original 107,000 cubic yards which are specified in the contract. If this be true, it may be appropriate that the plaintiff be compensated therefor at the rate of $0.31 per cubic yard.
The foregoing presupposes that the arm's length contract between the parties represents a fair and reasonable way of arriving at the going rate of pay in the community for this service. However, we deem it the better course to remand this cause to the trial court with instructions to enter a judgment which reflects an allowance of $33,100 for the 107,000 cubic yards at $0.31 per cubic yard and also provides for the recovery in quantum meruit for any additional work performed by the plaintiff for which the written contract did not provide a method of payment and which was not covered by the extra contracts of May, 1962. Any payments made by Mr. Chenenoff to date would be credited. The trial court, upon the remand, will be bound by our conclusion that the plaintiff is not entitled to recover at the contract price of $0.80. However, the trial court will not consider itself bound by our view that $0.31 may be a fair price in quantum meruit; nor will the trial court be obliged to adopt our impression that the cutting of 20,000 cubic yards remains uncompensated.
The trial court may hold additional hearings if, in its opinion, such hearings are desirable. The trial court's dismissal of the counterclaim is entirely supported by the record, and no further proceedings attendant to such counterclaim need be had. By the Court. — Judgment reversed, and cause remanded with directions.