Bouslough v. Shingledecker

• Decision Date: 09 October 1953
• Citation: 125 N.E.2d 885,97 Ohio App. 329
• Parties: , 56 O.O. 114 BOUSLOUGH et al., Appellees, v. SHINGLEDECKER, Appellant.
• Court: Ohio Court of Appeals

Page 329

97 Ohio App. 329

125 N.E.2d 885, 56 O.O. 114

BOUSLOUGH et al., Appellees, v. SHINGLEDECKER, Appellant.

Court of Appeals of Ohio, Mahoning County.

Oct. 9, 1953.

Syllabus by the Court.

Where a contract is entered into by two persons, A and B, with the expressed purpose of making A the principal and B his agent in the conduct of a home construction business, and, subsequently, C agrees with A to purchase a house to be constructed by A, and, thereafter, C sues B as the partner of A, for the recovery of an overpayment of the contract price of the house, a verdict and judgment for C is not erroneous, where, in addition to evidence that A and B were such principal and agent, there was evidence from which the jury might determine that A and B were partners in the business.

Theodore R. Cubbison, Youngstown, for appellees.

Carlyle & Carlyle, Youngstown, for appellant.

PHILLIPS, Judge.

On October 1, 1949, defendant, Shingledecker, and his son-in-law, Nagel, a college student, part-time embalmer and real estate agent, entered into a contract in writing, which provided:

'This agreement made and entered into this first day of October, 1949, by and between H. L. Shingledecker, 7219 Market St., Youngstown, Ohio and William E. Nagel, 407 West Liberty St., Hubbard, Ohio. Witnesseth

'Said H. L. Shingledecker having conducted a construction business under the trade name of 'Better Built Homes' is to be considered the sole owner of the above trade name, and by this agreement hereby transfers and assigns to the said William E. Nagel the right to use said trade name in connection with any residence or commercial construction done by him, and upon the termination of this agreement the said William E. Nagel agrees to reassign and retransfer all his right, title and interest to use said trade name of 'Better Built Homes' to the said H. L. Shingledecker.

'The said William E. Nagel agrees to use the said trade name of 'Better Built Homes' exclusively in connection with any and all construction, either residence or commercial, advertising, banking and financing purposes during the life of this contract.

'Further, the said William E. Nagel agrees to and hereby engages and employs the said H. L. Shingledecker as his exclusive sales representative for the duration of this agreement. Said employment is to be on the basis of a straight commission, based on one half the difference between the net construction cost, including office and advertising expense, and the sales price.

'The said William E. Nagel shall have the sole right to determine and set the sales price of each construction contract made and shall have full and complete charge of and shall assume sole responsibility of construction contracts entered into as well as of subcontractors and materialmen.

'The said H. L. Shingledecker shall turn over to the said William E. Nagel all moneys collected by him in connection with any and all sales for construction made by him. If so requested, the said William E. Nagel shall furnish to the said H. L. Shingledecker a full and complete itemized account of the net construction cost of each contract job, and who shall have the right to examine all records and books pertaining to any and all construction jobs, at all reasonable hours, with the understanding that any information obtained therefrom shall be treated in a confidential manner.

'The said H. L. Shingledecker shall be furnished with a key to any and all jobs under construction, for the purpose and right to show same to any prospects, in furtherance of this responsibility for making sales.

'It is the sole intention and purpose of this agreement to create a relationship of principal and agent. Neither principal or agent has any responsibility except as herein stated and provided.

'In witness whereof we have hereunto set our hands and seals this first day of October, 1949.

'Signed in the presence of:

Patricia Nagel

Sara Ellen Shingledecker

William E. Nagel

W. L. Shingledecker.'

As the result of a meeting of plaintiffs and Nagel at the home of mutual friends on October 25, 1950, plaintiffs executed the following written agreement for the construction of a dwelling house:

'This agreement, made and entered into this 25 day of April 1950 by and between Emerson M. and Geraldine L. Bouslough, 3729 Erie St., the owner and Better Built Homes, 1705 Market St., contractor.

'Witnesseth, that said contractor agrees to erect and complete said building; the work to be done in a good workmanlike manner; materials furnished according to plans and specifications, for the sum of ten thousand two hundred dollars ($10,200).

'Said owner hereby agrees to pay to the said contractor the above amount, payable as follows:

'$300 W. E. N. When the contract is signed.

$.......... When roof is on and completed.

$.......... When plastering is completed.

$.......... When all terms of contract are completed, and before owner takes possession.

'The owner hereby certifies that they is [sic] the owner of said land, free from all incumbrances, except none. If there is any increase, either in labor or material costs between the date of this contract and within ten days after the loan is approved, such increase shall be added to the above contract price.

'Under this contract the contractor agrees to install a maximum of fifty (50) feet of sewer, water and gas lines to a maximum depth of nine (9) feet. However, said sewer, water and gas lines must all be installed from either the front or rear of lot.

'If any rock is encountered in the excavation for the basement, sewer, water or gas lines, an extra charge will be made.

'An extra charge will be made for any trees to be removed.

'Any dirt necessary to be removed will be so done at the expense of the owner.

'The owner shall, during the progress of the work and until final settlement, maintain insurance on the same against loss or damage by tornado and fire; the policy to cover all work and material as furnished, and made payable to the owner, contractors and materialmen as their interests may appeal. The provisions of this contract shall be subject to the benefit of all materialmen and subcontractors whose claims are not paid when due, and if desired, the owner may require the contractor to furnish a complete release of all liens before final settlement.

'It is further agreed that said owner shall not be entitled to possession of said property until the entire contract price shall have been paid to said contractor, including all extras. Taking possession of building by owner shall constitute an acceptance of all the contractor's obligations.

'The said parties for themselves, their heirs, successors, executors, administrators or assigns, do hereby agree to the full performance of the covenants herein contained.

'In witness whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written.

'In the presence of:

Emerson M. Bouslough

Owner Geraldine L. Bouslough

Contractor Better Built Homes

William E. Nagel.'

Plaintiffs paid $829.38 in excess of the stated contract price to complete the construction and obtain possession of such dwelling, for the recovery of which amount they sued Shingledecker and Nagel in the Court of Common Pleas.

Having been adjudicated a bankrupt, Nagel was dismissed as a party defendant in the trial court at the close of all the evidence.

The jury returned a verdict for plaintiffs for the amount prayed. The trial judge overruled the motion of Shingledecker for a new trial, and entered judgment for plaintiffs on the verdict...