Berg v. Kucharo Const. Co.
| Decision Date | 05 February 1946 |
| Docket Number | 46805. |
| Citation | 21 N.W.2d 561,237 Iowa 478 |
| Parties | BERG v. KUCHARO CONST. CO. et al. |
| Court | Iowa Supreme Court |
Rehearing Denied April 5, 1946.
Bradshaw Fowler, Proctor & Fairgrave, of Des Moines, for appellants.
Hansen & Wheatcraft, of Des Moines, for appellee.
Plaintiff is a building contractor. Defendants are construction companies which had a contract for the construction of War Housing Project, Texas--41224, consisting of one hundred twenty-five apartment buildings, referred to as Liberator Village, and another contract for the construction of one hundred thirty-seven houses for Federal Housing Administration at Fort Worth, Texas, referred to as Defense Housing. Plaintiff was first employed by defendants as a carpenter foreman on Liberator Village. Later he entered into two subcontracts with defendants to do certain parts of the carpenter work upon the Liberator Village project and the Defense Housing project. Defendants also rented seven electric power saws from plaintiff.
This action is in four counts:
Count 1 is for damage to the power saws, Count 2 is for the balance of the Liberator Village subcontract price, Count 3 is for extra work performed on the Liberator Village job and Count 4 is for damages for breach of the Defense Housing subcontract.
On Count 1 the jury allowed $375, on Count 2 plaintiff demanded $12,890.84 and was allowed $11,509.73, on Count 3 he was allowed $3340.46, on Count 4 he demanded $6286.75 and was allowed $2886.93. These allowances resulted in judgment for plaintiff for $18,112.12, from which defendants have appealed.
Federal Housing projects are built on a production basis similar to an assembly line plan. One group of carpenters performs a specific part of the work, such as setting the floor joists and moves to the next building to again perform the identical work. Each following group of workmen does some other specific part of the work on each building. Thus each carpenter or mechanic does specialized work with which he becomes very familiar. Plaintiff testified this method of organization substantially reduces labor costs and that contracts for such projects are figured upon this basis.
Liberator Village subcontract was for the erection of all interior mill work, cabinets and wood trim, application of hardware, fitting and hanging of windows, doors, screens and screendoors in one hundred twenty five apartment buildings. The adjusted subcontract price was $29,170. That plaintiff performed this subcontract is undisputed. The controversy over Count 2 involves the allocation of payments. Defendants made payments for plaintiff on payrolls, insurance, taxes, etc., on the Liberator Village work, totaling $34,827.47. Plaintiff separated these payments into two parts, charging himself and crediting defendants with $16,745.70 advanced on the work done under the written contract and $18,081.77 on the extra work involved in Count 3 of the petition. The jury made a special finding that plaintiff had established that the amount of such advancements allocated by plaintiff for necessary expense for the work done under the written contract was correct. Accordingly the jury found plaintiff entitled to $11,509.73 on Count 2. The record does not show why the jury reduced the allowance on Count 2 to this figure.
The jury made another special finding that plaintiff had established $18,081.77 to be the reasonable amount of necessary expense for labor, taxes, social security, and insurance in performing and carrying out extra work on Liberator Village under the oral agreement referred to in Count 3. As above noted, plaintiff credited defendants with that amount out of the $34,827.42 advanced. Of said $18,081.77, $16,702.16 was for payroll and the remainder for taxes, social security and insurance. Plaintiff's claim on Count 3 is based upon the claimed unpaid balance of ten per cent of said labor cost ($16,702.15) for overhead and ten per cent for profit. The jury allowed $3,340.46 on Count 3.
The basis for plaintiff's claim in Count 3 for extra work on Liberator Village is as follows:
Under the contract defendants were to have exterior window and door frames and exterior trim set by others and to furnish the mill work, cabinets, windows, doors, etc., and plaintiff was to do the interior finish carpenter work and hang the doors, windows, screens, etc. At the time the written contract was made and plaintiff's work started, the work of the principal contractor on a few of the buildings had progressed far enough that the same were ready for the work under plaintiff's subcontract. These buildings were in satisfactory condition, as was also the small amount of the interior mill work which was then on the job.
The buildings later turned over to plaintiff were not in proper condition and much of the mill work and trim delivered later was defective or unprocessed. The window and door frames which the job specifications required to be set plumb and level and blocked with wedges were not so set nor blocked. In all of the buildings except the first few, they were made of wet, green lumber that had warped and twisted out of shape. Upon complaint of plaintiff, defendants sent some carpenters to adjust the defects but they were unable to do so satisfactorily. Thereupon defendants told plaintiff to do the work and he would be paid for it; that as long as plaintiff was already working on the windows it would be cheaper and better to have him make the corrections than to send other men to do it. Plaintiff and his men made these corrections by straightening the bowed members, plumbing and leveling the frames and wedging and blocking them and in some cases replacing them. Approximately fifty five hundred window and door frames were corrected.
Other defects appeared in the windows and window and door frames and defendants again told plaintiff defendants would have to take care of it, that plaintiff should get it done and he would be paid for it. Much of the mill work which the subcontract required defendants to furnish was not properly processed, or was not processed at all. When plaintiff showed this to defendants he was told to stop bothering defendants about it, to go ahead and do that and they would pay him for it. Plaintiff then had his workmen reprocess the millwork in his shop. Plaintiff's shop foremen testified ninety per cent of the shop time was devoted to remilling.
The screens furnished were not the proper size and plaintiff was told to take them to the shop and do that work and defendants would pay plaintiff for it. Plaintiff told Mr. Kucharo it would cost in the neighborhood of $500. to correct a certain shipment of screens. Mr. Kucharo said he thought that would be too much but told plaintiff to go ahead and do it.
The exterior doors were defective. Mr. Kucharo asked plaintiff to put some men on that work and said they were satisfied to have him make some money on that. This required considerable work on five hundred doors.
The base boards did not comply with specifications. When plaintiff so advised Mr. Kucharo he was told to install them and that if it should be necessary to take them out defendants would take the responsibility. The inspectors for the government required them to be removed and replaced in about sixty of the buildings.
Plaintiff testified also concerning extra work to remedy various defects in or to reprocess other materials and equipment furnished by defendants for installation by plaintiff and to various other conversations similar to those above mentioned. In one conversation Mr. Kucharo told plaintiff to take care of the situation the way it comes in.
The principal items in the charge for extras are: Blocking and reworking door frames, blocking and reworking windows, reworking sash, reworking trim and door jambs, making and reworking screens, making up missing items of mill work, back puttying glass in exterior doors, reworking and rebuilding cupboards, reworking and assembling book shelves, replacing base boards, reworking shelves. The minor items are boxing for vent pipes, making window stops, reworking medicine cabinets, drilling windows.
Plaintiff kept a record of the time and wages of his employees in the extra work on Liberator Village. Said record is known as Exhibit 'G.' Further reference to it will be made hereinafter. The time consumed in doing one extra item, that of reprocessing six thousand shelves, is not shown in said record, the reason given being that because the work on each shelf was identical and required fifteen minutes time at $1.25 per hour no detailed record was necessary. Plaintiff arrived at the reasonable value of the extras by adding to the cost of labor, insurance, taxes, and social security (found by the jury to amount to $18,081.77) plus ten per cent of the cost of the labor for overhead and ten per cent for profit. He testified this is the customary charge by contractors.
Count 4 of the petition is for damages for the breach by defendants of the Defense Housing subcontract with plaintiff. This contract required plaintiff to do all the carpenter work on the one hundred thirty seven houses at $315. per house. The adjusted contract price was $41,227.78. Defendants' total advances on this contract, plus truck rental, amount to $53,714.52, an overpayment of $12,486.74. The contract provides that defendants will provide materials and deliver the same to various points on the building sites as directed by plaintiff. The houses in this project were in three groups which were several miles apart. Plaintiff alleged defendants breached the contract by failing to supply proper trim, by failing to make deliveries to points directed by plaintiff and by so delaying deliveries as to prevent normal progress of the job on...
To continue reading
Request your trial