Berger v. Alan Realty Co.

• Decision Date: 09 October 1956
• Parties: Jerrold M. BERGER, Respondent, v. ALAN REALTY CO. et al., Appellants.
• Court: Wisconsin Supreme Court

Page 747

78 N.W.2d 747

273 Wis. 427

Jerrold M. BERGER, Respondent, v. ALAN REALTY CO. et al., Appellants.

Supreme Court of Wisconsin.

Oct. 9, 1956.

Alfred J. Sapiro, Elliot N. Walstead, Milwaukee, for appellants.

Howard E. Halaska, Elm Grove, Robert T. McGraw, Waukesha, of counsel, for respondent.

MARTIN, Justice.

Alan Realty Company is a builder; Russell C. Nelsen was employed by the company as a field man. Plaintiff Jerrold Berger is in the grading and landscaping business. In June 1954 Nelsen contacted the plaintiff with respect to grading and landscaping on a project being developed by Alan Realty. Plaintiff prepared a written contract, mailed it to Nelsen who signed and returned it on June 30, 1954.

In paragraph 1 of the contract the price 'for work performed and materials furnished as herein set forth, shall be * * * Time and material plus 10% to be paid once a week.' It further provided:

'2--Work to be done: erect retaining walls, and sod banks where necessary, grade lots and install driveways size of walls and areas to be sodded will be at landscapers discression.

'3--Materials, Trees, Schrubs, Grass, etc., to be furnished: Top soil 6 yds $14.00; Sod good clean soil .30 sq. yd delivered wallstore $8.00 ton delivered, labor 3.00 hr.; Bulldozer 8.00 hr. single axel truck 4.50 hr. rubber tire loader 6.00 hr. wallstore mason 4.00 hr.'

The question involved is whether the parties contracted for labor and materials at specific prices plus 10% or at actual net cost to plaintiff plus 10%.

While there is some conflict in the testimony as to what the understanding of the parties was prior to execution of the contract, we deem it unnecessary to detail the testimony at length. The language of the contract itself considered in connection with the facts which are undisputed requires that the judgment of the trial court be affirmed.

Plaintiff commenced work on the grading and landscaping June 14th. Sometime before July 12th he sent to Alan Realty itemized statements dated June 26, July 2 and July 8, totaling $4,142.87. The statements specified the number of hours of labor, truck, and bulldozing service, etc., and the amounts of the various materials, sod, dry wall, etc., all at the charges set out in paragraph 3 of the contract, and the statement of July 8th, which totaled the charges, included the additional charge of $376.62 for '10% of above as per contract.'

It is undisputed that the charges specified in the contract were over plaintiff's actual net costs of labor and material. The statements rendered evince the plaintiff's interpretation of the contract as calling for the specified prices, rather than his actual cost, plus 10%.

On July 12th Nelsen and Emanuel Lozoff, president of Alan Realty, visited the plaintiff on the job and gave him a check for $2,500 on the account. At that time there was no discussion concerning the charges made in the statements. Nelsen and Lozoff admit they made no objections thereto; nor did they object to the quality of the work or the time it was taking. In our opinion, the payment without objection on July 12th conclusively shows an acceptance by defendants of the interpretation placed on the contract by the plaintiff and manifests a meeting of the minds of the parties. Thereafter the company received similar weekly statements, and it was not until July 23rd, at a conference between the parties, that Lozoff complained about the charges and asked for figures as to plaintiff's actual cost of materials and hourly rates paid to his men.

Plaintiff's interpretation of the contract, as evidenced by his itemized statements and as accepted by defendants when they made the $2,500 payment, is a far more reasonable interpretation than that which is now suggested by defendants. Nowhere in the contract is language employed...