Building Systems, Inc. v. Rochester Metal Products, Inc.

• Decision Date: 30 January 1976
• Docket Number: No. 3--774A119,3--774A119
• Citation: 168 Ind.App. 12,340 N.E.2d 791
• Court: Indiana Appellate Court
• Parties: BUILDING SYSTEMS, INC., an Indiana Corporation, Plaintiff-Appellant, v. ROCHESTER METAL PRODUCTS, INC., Defendant-Appellee.

Page 791

340 N.E.2d 791

168 Ind.App. 12

BUILDING SYSTEMS, INC., an Indiana Corporation, Plaintiff-Appellant, v. ROCHESTER METAL PRODUCTS, INC., Defendant-Appellee.

No. 3--774A119.

Court of Appeals of Indiana, Third District.

Jan. 30, 1976.

Rehearing Denied April 13, 1976.

Tom F. Hirschauer, Miller, Tolbert, Hirschauer & Wildman, Logansport, for plaintiff-appellant.

Jesse A. Brown, Brown, Brown & Rakestraw, Rochester, for defendant-appellee.

HOFFMAN, Judge.

This appeal arises from an action brought by plaintiff-appellant Building Systems, Inc. (contractor) to foreclose a mechanic's lien claimed by it upon certain real estate owned by defendant-appellee Rochester Metal Products, Inc. (Rochester). The trial court ordered such cause dismissed under the provisions of Ind. Rules of Procedure, Trial Rule 41(B), following the presentation of the contractor's case-in-chief. The contractor then filed a motion to correct errors, which was overruled by the trial court, and subsequently perfected this appeal.

On appeal, the contractor asserts that the trial court erred in ordering such dismissal because evidence was introduced during its case-in-chief which would have entitled it to some recovery either under the mechanic's lien statutes or upon the underlying contractual obligation.

Trial Rule 41(B), supra, provides, in pertinent part:

'(B) Involuntary dismissal: Effect thereof. After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court without a jury, has completed the presentation of his evidence thereon, the opposing party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that considering all the evidence and reasonable inferences therefrom in favor of the party to whom the motion is directed, to be true, there is no substantial evidence of probative value to sustain the material allegations of the party against whom the motion is directed. The court as trier of the facts may then determine them and render judgment against the plaintiff * * *.'

The language of this rule requires the trial court to consider only the evidence and inferences most favorable to the non-moving party in ruling upon such a motion. The trial court may not weigh the testimony of one witness against the conflicting testimony of another witness, nor may it weigh conflicting portions of the testimony of the same witness. Ohio Casualty Ins. Co. v. Verzele et al. (1971), 148 Ind.App. 429, 267 N.E.2d 193. Thus, our Trial Rule 41(B), supra, differs from Federal Rule 41(b) in that under the Federal Rule the trial court need not consider only the evidence and reasonable inferences therefrom most favorable to the non-moving party, but is free to determine whether the plaintiff (or party with the burden of proof) has established a right to recovery by a preponderance of the evidence during his case-in-chief. Emerson Electric Co. v. Farmer (5th Cir., 1970), 427 F.2d 1082; Ellis v. Carter (9th Cir., 1964), 328 F.2d 573, 577; Motorola, Inc. v. Fairchild Camera and Instrument Corp. (DC Ariz., 1973), 366 F.Supp. 1173, 1176. See also: 9 Wright and Miller, Federal Practice and Procedure, § 2371, at 224--225; Moore's Federal Practice, Vol. 5, § 41.13(4), 1155--60.

Because the trial court may consider only the evidence and inferences favorable to the non-moving party in ruling upon a motion for involuntary dismissal, this Court must determine whether there was evidence introduced which would have been sufficient to support a recovery by such party when the granting or denial of such a motion is an issue on appeal. In the case at bar, then, the issue is whether the trial court properly found that there was no substantial evidence of probative value which would have supported the material allegations of the contractor.

The facts most favorable to the appellant contractor contained in the record of this cause establish that the contractor entered into an agreement with Rochester to construct an addition to its manufacturing facility. The need for such facility was immediate, and although tentative specifications were drawn up for the structure, many important details of the project had to be determined during its construction. The written contract between the parties based the price of the improvement on the contractor's costs plus a certain percentage of such costs.

Several incremental payments were made to the contractor by Rochester during and after the primary construction phase of the project. Apparently in response to questions by Rochester regarding the source of costs above an estimate for the improvements, the contractor furnished to Rochester lists of 'extra' services and materials which had been furnished during the construction, each containing a 'recap' of the charges and payments made to that date and the remaining balance on Rochester's account. These were introduced in evidence at trial. Additionally, the contractor's bookkeeper was allowed to testify to the total amount of charges for the project and the total payments made by Rochester.

The contractor's theory on appeal is that even if it failed to establish the validity of its mechanic's lien, still it was entitled to a personal judgment in the trial court upon its construction contract with Rochester. Further, it contends that because the existence of such contract was admitted by Rochester, only general proof of the total amount due under such contract was necessary.

The contractor introduced evidence during its case-in-chief that the agreement here at issue was not a contract requiring a certain result for an agreed price, but was open-ended as to both scope and total price, with such total price dependent upon the cost of the materials and labor required for the work which was performed.

In view of the uncertainty of the performance required of the purchaser under such a contract, any unpaid charges by such a purchaser thereunder must be considered to be in the nature of an account, with the total of the account indebtedness dependent upon the aggregate of the individual charges made to such purchaser for materials, labor and percentage add-on. Cf: Watson v. Penn (1886), 108 Ind. 21, 25, 8 N.E. 636. Furthermore, in view of the apparent dispute as to the amount due and the prompt requests by Rochester for detailed itemizations of the changes which had escalated the cost of the project above the estimates, it cannot be concluded that the account in the case at bar was an agreed or stated account. Bottema v. Hendricks Cty. Farm Bur. Co-op. Ass'n, Inc. (1974), Ind.App., 306 N.E.2d 128; Jasper Corporation v. Manufacturers' Appraisal Co. (1972), 153 Ind.App. 457, 287 N.E.2d 781 (transfer denied); Walsh v. Farm Bureau Co-op. (1969), 146 Ind.App. 42, 252 N.E.2d 609 (transfer...