Bond v. Stardust, Inc.

• Decision Date: 27 January 1966
• Docket Number: No. 4911,4911
• Citation: 410 P.2d 472,82 Nev. 47
• Parties: James E. BOND, dba Sunrise Sheet Metal, and Industrial Sheet Metal Works, a California corporation, Appellants, v. STARDUST, INC., Respondent.
• Court: Nevada Supreme Court

Page 472

410 P.2d 472

82 Nev. 47

James E. BOND, dba Sunrise Sheet Metal, and Industrial Sheet Metal Works, a California corporation, Appellants, v. STARDUST, INC., Respondent.

No. 4911.

Supreme Court of Nevada.

Jan. 27, 1966.

Jones, Wiener & Jones, Las Vegas, for appellants.

Samuel S. Lionel, Las Vegas, for respondent.

THOMPSON, Justice.

This appeal is from a summary judgment for Stardust, Inc., the plaintiff below. The appellant Bond suggests that genuine issues of material fact remain and asks that we reverse and remand for trial. We think that summary judgment was properly entered and affirm.

This case is one of many resulting from the construction of the Stardust Hotel at Las Vegas, Nevada. Stardust ran out of money before the job was completed. Consequently, many subcontractors filed liens. Bond, a sheet metal subcontractor, filed a lien for labor and materials in the sum of $99,602.20. In lieu of foreclosure proceedings, the lienholders, including Bond, entered into an extension agreement with Stardust under which the lienholders released their liens and received in return a 25% payment on their claims plus unsecured installment notes for the balances claimed to be due. This arrangement enabled Stardust to secure additional financing and complete the job. Pursuant to the agreement, Stardust paid Bond 25% of the amount for which a lien had been filed and executed an installment note to Bond for the balance. The agreement also reserved to Stardust the right to challenge the correctness of the subcontractor's claims by suit in the district court, as the claims had not been fixed or audited. The suit below was to challenge the correctness of Bond's claim of $99,602.20. ¹

Stardust alleged that Bond had been guilty of overcharging for the labor and materials furnished. In a separate count, Stardust asserted that Bond had offered gratuities to the general contractor in violation of NRS 613.190. Stardust asked the court to determine the amount due Bond, if any. Bond's answer admitted all material averments of the complaint except that he denied overcharging and denied any statutory violation. As the litigation posed mainly an accounting problem, Stardust moved for the appointment of a special master as authorized by NRCP 53. The court granted the motion and, in accordance with 53(c), directed the master to report on three issues: first, to find each item and charge for labor performed and materials furnished; second, to find the reasonable value thereof; and, third, to conclude whether Stardust had been overcharged. The master did as directed. He examined all billings in detail, conducted hearings at which testimony was received and, when finished, filed his findings and report with the court. He had found each item and charge, determined reasonable value, and concluded that Bond had overcharged Stardust by $72,992.75 and had been overpaid in that amount. Bond's objections to the master's report were made, a hearing held, and the objections overruled. The court adopted the report. Relying on that report, Stardust then moved for summary judgment. Bond resisted and, in opposition, submitted his conclusory affidavit to the effect that the labor was performed and materials furnished for a stipulated price pursuant to an agreement with Stardust. The essential terms of the agreement were not stated. Therefore, he argued that, as the master's report concerned quantum meruit and had nothing to do with work being done for a fixed contract...