Opinion
October 5, 1950 —
November 8, 1950.
APPEAL from a judgment of the municipal court of Brown county: DONALD W. GLEASON, Judge. Affirmed.
For the appellants there was a brief by Martin, Clifford, Warne, Duffy Dewane of Green Bay, and oral argument W. O. Warne.
For the respondent there was a brief by Kaftan, Kaftan Kaftan of Green Bay, and oral argument by Robert J. Kaftan.
The action is one to foreclose a mechanic's lien and was begun June 18, 1947. Judgment of foreclosure was entered September 17, 1949. The defendants appeal.
The plaintiff was engaged by the defendants to convert the attic of their home into an apartment to be rented to tenants. The contract consists of a floor plan and two documents, as follows:
"Date: 3/21/47 "City: Green Bay, Wis. "State: Wisconsin"This agreement, made in Green Bay this 21st day of Mar. 1947, by and between A.C. Stikl hereinafter called the contractor, and Ed. DeBoth hereinafter called the owners, Witnesseth:
"That the contractor and owner for the consideration hereinafter named agree as follows:
"Article I. The contractor agrees to provide the materials as specified and to perform all the work shown on the plans and subscribed in the priorities and to do everything required by the general conditions of the priorities and drawings.
"Article II. The contractor agrees that the work under this contract shall be substantially completed as soon as possible.
"Article III. The owner agrees to pay the contractor in current funds for the performance of the contract ten per cent above cost.
"Article IV. The contractor and the owner agree that the general conditions, the specifications, and the drawings, together with this agreement form the contract.
"The contractor and owners for themselves, their successors, executors, administrators, and assigns, hereby agree to the full performance of the covenants herein contained.
"In witness whereof, they have executed this agreement the day and year first above written.
"John Stikl, Jr. "Witness "Owner Edward J. DeBoth. "Owner Marie DeBoth. "Contractor A.C. Stikl.""Specifications
"3/21/47 "Green Bay, Wis. "All work to be performed in a workmanlike manner to the satisfaction of the owner, Ed. DeBoth, according to the plans drawn. The plans are to be printed and sufficient copies made for the various building trades to use in the remodeling of the building in question."The cost involved in the remodeling to be done will be approximately two thousand three hundred thirty-six dollars (2,336) plus the heating plant.
"A. C. Stikl, Contractor "Edward J. DeBoth" Work commenced promptly and proceeded until May 1, 1947, when the plaintiff, in a discussion over the progress of the work, said that the completed job would cost about $4,000. The defendants dismissed him and had the work finished by others. He then brought his action to foreclose the lien which he had filed against the property. The theory of his complaint was that his contract called for compensation based on his cost plus ten per cent. The theory of defendants' answer and counterclaim was that their liability to plaintiff was limited by the contract to approximately $2,336 and he was indebted to them for $1,453.94 by which the cost of the completed apartment exceeded that contract price with credit given for admitted extras.Other material facts are stated in the opinion.
The action was tried to the court which made findings of fact and conclusions of law in favor of plaintiff. Under familiar principles of law the findings must be sustained unless against the great weight and clear preponderance of the evidence. The only finding material to our decision is that which interpreted the contract as one for compensation at cost plus ten per cent, unlimited by the recitation concerning $2,336, which was found to be only an estimate.
The two written instruments and the floor plan are persuasive in themselves that a rate of pay rather than a fixed or maximum amount is all that the parties actually agreed upon. Both parties knew that the supply, quality, and price of building materials at that time were extremely uncertain and the cost of labor was unstable. The contract does not call any kind, quantity, or quality of materials nor for any type of construction. The floor plan lacks detail and there is no elevation plan at all. It is not easy to believe that the plaintiff could or would set a definite price on so indefinite a project or that the defendants would agree to pay $2,336 with so little assurance of what they were to get for it. The papers which form the contract, indefinite in all other respects, are definite only in stating that the contractor was to be paid ten per cent above costs for what might be done to carry out the wishes of the owner.
The behavior of the parties as the work progressed adds support to this interpretation. Plaintiff's foreman and Mrs. DeBoth had frequent conferences in which each made suggestions for the improvement of the apartment, materially changing the earlier plans. Thus exterior walls were pushed out to give more floor space, the pitch of the roof was changed to give more headroom, and interior partitions were moved to secure a better arrangement of the rooms. Copper screens and storm windows were added and the apartment was insulated, French doors were substituted for the regular kind, and tile was ordered for the bathroom floor instead of the linoleum first decided upon. Neither party could have expected the plaintiff to absorb the cost of such items and others of like nature in a fixed-price contract which had not included them or made provision for extras but they would be alterations naturally accepted without question if he was to be paid their cost plus a profit.
Other evidence which seems to us to be quite conclusive is defendants' Exhibit B.
"April 11, 1947 "Mr. Mrs. Edw. J. DeBoth "614 Eleventh ave. "Green Bay, Wisconsin "Greetings: "This statement is prepared for the sole purpose of keeping you informed of the expenditures to date. However it does not include all of the bills not received or orders placed to be filled. . . ."The statement then shows material and labor billed to date amounting to $1,264.13. The parties discussed the statement and Mr. DeBoth wanted to know what outstanding bills there were. Plaintiff, in pencil, added such items which brought the total up to $2,677. The furnishing of the statement and DeBoth's interest in it lacks point unless plaintiff's costs were of concern to the owner.
Defendants say in their brief:
"On or about May 1, 1947, plaintiff called at defendant's home. Defendant was perturbed because of the delay in finishing the job. Plaintiff then informed defendant that the job was going to cost $4,000, so defendants told plaintiff that he had better stop the job as they had a contract for $2,336."
On April 11th the statement with the penciled additions showed the figure of $2,336 had already been exceeded and it was obvious from the unfinished state of the apartment that further substantial costs for labor would be required to complete it. If defendants had thought there was a contract for a fixed sum, they had on April 11th all the essential facts which they had on May 1st and we might look for the same reaction, yet on April 11th and for more than two weeks afterward, they made no such claim but continued with the work. It is a proper inference that on April 11th they construed the contract as one for cost plus ten per cent and an afterthought was responsible for the position they took on May 1st.
Other testimony supports the learned trial court's finding but we think what has been said is a sufficient base for our conclusion that the judgment must be affirmed. Defendants counterclaimed for the sums they spent in completing the apartment after dismissing the plaintiff but their right to recover them necessarily depends on proving a contract with plaintiff at a fixed price.
By the Court. — Judgment affirmed.