Opinion
No. 9128.
March 5, 1964.
APPEAL FROM DISTRICT COURT, ELEVENTH JUDICIAL DISTRICT, TWIN FALLS COUNTY, THERON W. WARD, J.
Blandford Blandford, Kimberly, T.H. Church, Burley, for appellant.
Richards, Haga Eberle, Boise, for respondent.
Although apart from statute a signature is not necessary to the formation of a contract, it may serve as a manifestation of an intent to make a contract. 17 C.J.S. Contracts § 62a, p. 410; 12 Am.Jur. 551, Contracts, Section 61; Champion v. Hammer, 178 Or. 595, 169 P.2d 119.
Equity does not require that all the terms and conditions of the proposed agreement be set forth in the contract or that they be stated in the minutest detail, but only that there be a meeting of the minds upon the essential features of the agreement. Taysom v. Taysom, 82 Idaho 58, 349 P.2d 556; Tingwall v. Wilson, 50 Idaho 452, 296 P. 1017; Kahn v. Lischner, 128 Cal.App.2d 480, 275 P.2d 539; Nadell Co. v. Grasso, 175 Cal.App.2d 420, 346 P.2d 505; Bettancourt v. Gilroy Theatre Co., 120 Cal.App.2d 364, 261 P.2d 351.
Less certainty in the terms of a contract is required in an action for damages for breach thereof than in an action for specific performance. Anderson v. Whipple, 71 Idaho 112, 227 P.2d 351; Crouch v. Bischoff, 76 Idaho 216, 280 P.2d 419; Ward v. Ward (Colo.), 30 P.2d 853; Long Beach Drug Co. v. United Drug Co., 13 Cal.2d 158, 88 P.2d 698, 89 P.2d 386; Store Properties v. Neal, 72 Cal.App.2d 112, 164 P.2d 38; 81 C.J.S. Specific Performance § 31, p. 483; Mason v. Ennes, 172 Cal.App.2d 99, 342 P.2d 79.
Though a contract may be unenforceable because of lack of mutuality or uncertainty, that defense is no longer available where the contract has been performed by one of the parties. Mason v. Rolando Lumber Co., 111 Cal.App.2d 79, 243 P.2d 814; Henry Keep Home v. Moore, 198 Okl. 198, 176 P.2d 1016; Harlow Pub. Co. v. Patrick, 181 Okl. 83, 72 P.2d 511; 17 C.J.S. Contracts § 36, p. 366.
A contract should be construed most strongly against the party preparing it or employing the words concerning which doubt arises. A claimed uncertainty in an agreement is to be interpreted most strongly against the party who causes the uncertainty to exist. And where a contractor prepares the contract, any doubt should be resolved in favor of the owner. Stone v. Bradshaw, 64 Idaho 152, 128 P.2d 844; Bryant v. Deseret News Pub. Co., 120 Utah 241, 233 P.2d 355; State Bank of Wilbur v. Phillips, 11 Wn.2d 483, 119 P.2d 664; Boring v. Filby, 151 Cal.App.2d 602, 311 P.2d 869; Nadell Co. v. Grasso, 175 Cal.App.2d 420, 346 P.2d 505; Gardner v. City of Englewood, 131 Colo. 210, 282 P.2d 1084; Barnes v. Western Pioneer Insurance Co., 151 Cal.App.2d 669, 311 P.2d 871; Reid v. Johnson, 85 Cal.App.2d 112, 192 P.2d 106; Lindenberg v. MacDonald, Cal.App., 195 P.2d 816.
A promise to erect a building implies an obligation to pay for all labor and material that enter into the structure. And where one agrees to do, for a fixed sum, a thing possible to be performed, he will not be excused from performance or become entitled to additional compensation because unforeseen difficulties are encountered or because extra work is made necessary by the contractor's negligence, unskillfulness, or unauthorized acts. 9 Am.Jur. 9, Sec. 8; Bearden v. Smith, Okl., 274 P.2d 1015; Maryland Casualty Co. v. City of Seattle, 9 Wn.2d 666, 116 P.2d 280; Union Electric Co. v. Lovell Livestock Co., 101 Mont., 450, 54 P.2d 112; J.D. Harms, Inc. v. Meade, 186 Wn. 287, 57 P.2d 1052; Gillespie Land Irrigation Co. v. Hamilton, 43 Ariz., 102, 29 P.2d 158; Dashnea v. Panhandle Lumber Co., Ltd., 57 Idaho 232, 64 P.2d 390; 17 C.J.S. Contracts § 371, p. 843; Bowman v. Maryland Casualty Co., 88 Cal.App. 481, 263 P. 826; Volume 3 of Page on the Law of Contracts, Page 2497, Section 1461.
After the trial court has found, the criteria are not what other or different findings the evidence could or would sustain, not what findings are plausible, nor the weight or quality of the evidence or creditability of witnesses, but the sole criterion is simply whether there is substantial evidence regardless of conflict to sustain the findings as made, with all reasonable inferences and intendments in favor thereof. Conley v. Amalgamated Sugar Co., 74 Idaho 416, at page 424, 263 P.2d 705; Jensen v. Chandler, 77 Idaho 303, 291 P.2d 1116.
In order to warrant the granting of a new trial on the ground of newly discovered evidence, it is essential, among other things, that such evidence has been discovered since the trial and that it could not have been discovered before or during the progress of the trial by the exercise of due diligence. Fredricksen v. Luthy, 72 Idaho 164, at page 168, 238 P.2d 430 and authorities cited therein; Papineau v. Idaho First National Bank, 74 Idaho 145, 258 P.2d 755.
Where conflicting evidence is submitted to a trial court sitting without a jury, either as a court of law or as a court of equity, the findings of the court on questions of fact, will not be disturbed where there is competent evidence to support them. Chatterton v. Luker, 66 Idaho 242, 158 P.2d 809 and authorities contained therein; Loosli v. Heseman, 66 Idaho 469, 162 P.2d 393 and authorities cited therein; Strahorn v. Ellis, 66 Idaho 572, 165 P.2d 294.
Plaintiff-appellant was the owner of certain premises in Kimberly, Idaho, on which he operated a grocery store business. On or about August 1, 1957, he decided to remodel and enlarge his grocery store. Appellant subsequently met with respondent's manager in order to discuss the proposed remodeling. During these negotiations, an instrument was drawn by respondent's manager. The original instrument was never introduced into evidence, however, as it was presumably lost.
Some time in September of 1957, the respondent's manager prepared a second instrument which was introduced into evidence as plaintiff's exhibit A. Respondent did not execute the instrument and an unexecuted copy was delivered to the appellant. Appellant signed the copy submitted to him and retained the same; however, respondent's manager never submitted the original thereof to appellant for signature. Pertinent portions of the instrument are herein set out as follows:
"We propose to do following — Remod le and add ition to the Kimberly Drive In in Kimberly — Owner John Stout.
* * * * * *
"When actual construction starts Builder (carpenter) will furnish all labor and be responsible for same for a p artion of this price and We, Boise Payette Lumber, furnish es Material for the Balance.
"The combined Total is $10,865.00"
Stapled to the instrument was a standard form upon which respondent's manager had written the following:
"Kimberly Drive In
Atta tched is an ag grement to sorta outline what we intend to do.
Insurance men or lenders may want to see it
Don Harney"
The significance of exhibit A is in dispute. Appellant insists that it is a written agreement by the terms of which respondent contracted to perform all labor and furnish all materials necessary to move and remodel appellant's grocery store for the agreed price of $10,865.00. Respondent contends that it is too uncertain and incomplete to constitute a contract; that it was only an estimate prepared for the sole purpose of helping appellant secure a loan; that respondent did not act in the capacity of a contractor but only as a materialman and supplier.
Construction commenced near the middle of September, 1957. Appellant was billed on a time and materials basis monthly for the materials delivered and the wages paid by respondent on behalf of the appellant. On or about the 15th of December, 1957, appellant paid $3500. On the second of January, 1958, respondent informed appellant that its job was finished and presented to appellant a statement for $7,295.83. Appellant paid the above sum under protest on January 10th. Respondent apparently ceased performance on December 31, 1957.
In his complaint, appellant alleged that respondent had failed to complete the remodeling and construction and that the portion that was performed was done in a negligent, careless and deficient manner. Respondent contended that it was working only on a time and materials basis and that it had never contracted to supply all the materials and furnish all the labor to be used in the construction and remodeling of appellant's grocery store. In its answer, respondent alleged that if there were any defects in appellant's grocery store they were caused by the negligence of the appellant himself.
The trial court ordered that appellant take nothing by his complaint and that the respondent be awarded costs in the sum of $14.95. Appellant takes his appeal from this judgment and the amended findings of fact and conclusions of law entered in this cause.
In his brief, appellant lists thirteen assignments of error. However, only three questions are presented by this appeal; all three are questions of fact.
The first question is concerned with the trial court's finding that appellant did not suffer any damage because of the alleged defects in materials and the alleged negligence of the respondent. This is obviously a factual matter. Respondent produced substantial, competent evidence in the trial of this case to the effect that it had not supplied defective materials; that it had not been negligent; and that if appellant had been damaged it was due to his own negligence. The finding of the trial court on this matter will not be disturbed on appeal. Knoblock v. Arenguena, 85 Idaho 503, 380 P.2d 898 (1963), C.R. Crowley, Inc. v. Soelberg, 81 Idaho 480, 346 P.2d 1063 (1959).
Appellant next contends that he and the respondent entered into an oral agreement whereby the respondent was to supply all of the labor and materials to be used in the remodeling and construction of his grocery store for the agreed price of $10,865.00. As we recently pointed out in Dawson v. Eldredge, 84 Idaho 331, 372 P.2d 414 (1962), the question as to the existence of an oral contract is one of fact. The trial judge found that there were no statements or series of statements which would constitute a contract or agreement between the parties for any relationship other than that of the respondent as a materialman and supplier. There was substantial, competent evidence to support this finding and it will not be disturbed on appeal. Dawson v. Eldredge, supra.
Appellant's final contention and the principal issue in this appeal is that he and the resondent entered into a written agreement whereby the respondent was to supply all of the labor and materials to be used in the remodeling and construction of his grocery store for the agreed price of $10,865.00. From the phrasing of his arguments on this appeal, appellant has apparently assumed that this presents a question of law. Respondent contends, however, that this presents a question of fact, requiring merely substantial, competent evidence for affirmance. We agree with the respondent. The question is whether or not appellant's exhibit A is a contract. While we are well aware of the rule that the construction or interpretation of contracts is a question of law, before a contract can be construed it must be proven that a contract exists. If it be claimed that a particular instrument was not intended by the parties to be a contract, the question as to whether or not the instrument was so intended is a question of fact and not a question of law. 17A C.J.S. Contracts, § 611, Gordy v. Ocean Park, Inc., 218 Md. 52, 145 A.2d 273 (1958), Southwestern States O. G. Co. v. Sovereign Resources, 365 S.W.2d 417 (Tex.Civ.App., 1963), Murphy Ames v. Herfurth, 61 App.D.C. 215, 59 F.2d 1029 (1932), Anderson v. Sandquist, 131 Fla. 555, 180 So. 372 (1938).
The trial court found that there was no agreement between the parties for a relationship other than that of the respondent as a materialman and supplier. The court further found that at no time did the parties intend to enter into a contract for the construction of improvements by the respondent as a contractor. Respondent adduced substantial evidence showing that appellant's exhibit A is merely an estimate drawn for the purpose of helping appellant secure a loan. His version of the facts in this case tends to show that the following events transpired between the parties. Prior to the time construction began, appellant requested respondent's manager to prepare an instrument which would estimate the cost of a proposed addition to his grocery store. The instrument was subsequently drawn and a copy thereof was sent to appellant. This copy is exhibit A, set out earlier in the opinion. No signatures appear on the original and in fact the original was never delivered to the appellant, but remained in the respondent's possession. Appellant's signature appears on exhibit A but this was done without knowledge of the respondent. Construction commenced near the middle of September, 1957. Appellant was billed on a time and materials basis. Difficulties arose in the construction process from almost the very beginning. Appellant was not pleased with the way the work was progressing, and he requested numerous changes during the course of construction. In addition, appellant hired the electricians, the plumber, and additional workmen for the job. Appellant negotiated with the plumber and carried on exclusive negotiations with the electricians. In short, appellant retained substantial control over the entire construction process. When the job was completed, the finished product differed in many respects from the way it appeared on exhibit A.
The instrument relied upon by appellant does not contain the essential elements of a contract. It is stated in the last paragraph, "When actual construction starts Builder (carpenter) will furnish all labor and be responsible for same for a p artion of this price and We, Boise Payette Lumber, furnish es Material for the Balance." The evidence shows that the instrument was drafted merely for appellant's convenience in that, "Insurance men or lenders may want to see it." For a case similar in fact and import see Beeler v. Miller, 254 S.W.2d 986 (Mo.App., 1953).
Judgment affirmed.
Costs to respondent.
KNUDSON, C.J., McFADDEN and TAYLOR, JJ., and ASCHENBRENER, D.J., concur.