Charles A. Burton, Inc. v. Durkee, 33913

• Decision Date: 22 December 1954
• Docket Number: No. 33913,33913
• Citation: 162 Ohio St. 433,123 N.E.2d 432,55 O.O. 247
• Parties: , 55 O.O. 247 CHARLES A. BURTON, Inc., Appellee, v. DURKEE et al., Appellants.
• Court: Ohio Supreme Court

Page 433

162 Ohio St. 433

123 N.E.2d 432, 55 O.O. 247

CHARLES A. BURTON, Inc., Appellee, v. DURKEE et al., Appellants.

No. 33913.

Supreme Court of Ohio.

Dec. 22, 1954.

Syllabus by the Court.

1. By rule of this court, the syllabus of a case constitutes a statement of the points of agreement of all the judges concurring in the opinion as distingushed from other statements made in the course of the opinion, but the rule does not substitute the syllabus for the court's order or judgment, from which must be determined the issues decided by the court.

2. Where a second action or a retrial of an action is predicated on the same cause of action and is between the same parties as the first action or first trial of an action, a final judgment of an appellate court in the former action or the first trial of an action is conclusive in the second action or second trial of an action as to every issue which was or might have been presented and determined in the former instance.

3. In an action to recover compensation under a building contract whereby the plaintiff builder is entitled to recover his cost plus a fixed fee as compensation for constructing the building, where the defendant for whom the structure was built asserts a counterclaim for compensable damages which he claims to have suffered by reason of malfeasance, extravagance, wastefulness and negligence on the part of the builder, the burden of proof is upon the defendant to establish such claims of damage, even though there is marked disparity between the builder's estimation of the cost and the actual cost of the structure.

This cause had its origin in the Common Pleas Court of Cuyahoga County as an action for money and the foreclosure of a mechanic's lien on the property of the defendants.

The plaintiff, appellee herein and hereinafter designated as builder, agreed by written contract to construct a house for the defendants, appellants herein and hereinafter designated as owners. Construction on the house ceased before it was completed, and the builder filed a petition in the Common Pleas Court. He alleges that the contract was an agreement to pay 'all of said job costs, and in addition thereto a fixed fee of $2,700,' and claims that there was an unpaid balance due of $14,871.91. The owners filed an answer, alleging that the contract required the builder to erect the house for a total cost of approximately $27,000 for labor and materials, plus a fixed fee of $2,700 for the builder's overhead and profit, and a cross-petition, alleging that the builder had abandoned the construction, and that the owners were compelled to pay $11,570.36 for work and materials to complete the house. The owners pray for a judgment of $3,965.84 against the builder.

The cause was tried twice in the Common Pleas Court. On the first trial, a jury being waived, the trial court found as facts that the owners agreed to pay the builder $27,000 to cover the cost of labor, materials and services, together with an additional sum of $2,700 for overhead profit and compensation for the builder's services; and that the builder was entitled to an additional sum of $3,500, the cost of certain changes made in the original plans by agreement of the parties. Finding in favor of the builder on the petition and cross-petition, the court rendered judgment of the builder in the sum of $5,558.66.

On appeals by both parties to the Court of Appeals, that court reversed the judgment of the Common Pleas Court and remanded the cause to that court for a new trial. 106 N.E.2d 313. A portion of the court's entry of reversal and remand is as follows:

'2. That * * * said contract was on a so-called cost- plus a fixed fee basis entitling plaintiff to receive thereunder of the defendant its actual job costs as such 'job costs' are defined in the integrated portion of said contract, plus interest as claimed in the petition, of all labor, materials and services furnished, installed and performed by it * * *, plus the fixed fee stipulated in the integrated portion of said contract, to wit: $2,700.

'3. * * * That the defendants are, however, entitled to offset against plaintiff's said costs and to recover of plaintiff any lawfully compensable damages suffered by them by reason of any malfeasance, extravagance, wastefulness or negligence upon the part of plaintiff in the prosecution of said work or failure to proceed therewith with reasonable dispatch and due diligence.'

An appeal from that judgment was taken to this court, where it was affirmed. For a complete statement of facts and decision of this court see Charles A. Burton, Inc., v. Durkee, 158 Ohio St. 313, 109 N.E.2d 265.

This court held:

'2. Where parties, following negotiations, make nutual promises which thereafter are integrated into an unambiguous written contract, duly signed by them, the parol evidence rule wxcludes from consideration evidence as to other oral promises resulting from such negotiations.'

In the course of the opinion in that case, Judge Matthias said:

'It is contended by the defendants (1) that the writings alone made a contract for an approximate price of $27,000 for the construction of the building; (2) that the parol evidence confirmed a contract for an approximate price of $27,000 rather than a cost-plus basis; * * * and (4) that by reason of the great discrepancy between the estimate allegedly furnished by the plaintiff and the amount claimed by it as its costs the burden was on the plaintiff to show that its costs were reasonable.

* * *

* * *

'The language of the written contract, which was signed by the parties hereto, is clear and unambiguous, and the Court of Appeals properly held that the agreement between the parties was that payment by the defendants to the plaintiff for the erection of the dwelling, according to original plan, was to be the cost of all materials, labor, permits, taxes and insurance and all other costs and expenses incurred directly in the work plus a fixed fee of $2,700.'

Upon remand to the Common Pleas Court, the cause was tried to a jury, with the result that the builder was awarded a verdict for $15,440.44 from which the court remitted $578.29, the builder acquiescing, and entered a judgment for $14,862.15, plus six per cent interest. That judgment was, on appeal to the Court of Appeals, affirmed. The cause is now, for the second time, in this court on appeal as the result of the allowance of a motion to certify the record.

On retrial of the cause, the builder introduced evidence of his contract, a detailed record of the cost of construction of the house and testimony of interference and delays caused by the owner, and rested. There was no motion by the owners for a directed verdict. The owners introduced evidence tending to show that the house as built should have cost, without extravagence, not more than $35,000; and that some of the builder's skilled workmen did work of unskilled laborers and charged skilled-labor rates therefor. Rebuttal evidence was offered by the builder.

McDonald, Hopkins, Hood & Hardy, Cleveland, for appellants.

McCreary, Hinslea & Ray and Ansel B. Curtiss, Cleveland, for appellee.

HART, Judge.

One of the assignments of error made by the owners is that, even though the contract between the parties was on a cost-plusfixed-fee basis, it contained a maximum limitation clause of an approximate amount of $27,000, plus a fixed fee of $2,700; that such limitation should be recognized; and that a cost-plus builder whose claimed costs are disputed should be limited to recovery of the reasonable cost of the work done.

The question of the interpretation of the character of the contract and the rights and the obligations of the parties thereunder was before the Common Pleas Court, the Court of Appeals and this court in the former trial of this cause.

An appeal from the original judgment of the Court of Appeals was taken to this court and such judgment was here affirmed. See the judgment entry of the Court of Appeals and the syllabus and opinion of this court quoted from in the statement of facts herein. There was no further appeal, and that judgment, determining the basis of recovery under the contract, thereby became final as the law of the case, binding on all the courts on retrial of the cause. This court alone can overrule its former judgments.

The owners contend that only such part of this court's judgment of affirmance as was carried into the syllabus of the case became the law of the case, and that such syllabus relates only to the issue of parol evidence carrying a written contract. The owners, in support of this contention and citing 11 Ohio Jurisprudence, 797, rely upon rule VI of this court, which they state to be in effect that 'the points decided are found in the syllabus,' and that 'matter outside the syllabus is not regarded as decision.'

The purpose and object of rule VI of this court is to distinguish the syllabus, as the point of agreement of all the judges concurring in the opinion, from other statements made in the course of the opinion. The rule does not substitute the syllabus for the court's judgment, from which must be determined the issues decided by the court.

There can be no question that where a judgment becomes final in the course of litigation, it becomes res judicata or the law of the case as to all questions therein decided. Where a second action or a retrial of an action is predicated on the same cause of action and is between the same parties as the first action or first trial of an action, a final judgment of an appellate court in the former action or the first trial of an action is conclusive in the second action or second trial of an action as to every issue which was or might have been presented and determined in the former instance. Strangward v. American Brass Bedstead Co., 82 Ohio St. 121, 91 N.E. 988; Norwood v. McDonald, 142 Ohio St. 299, 52 N.E.2d 67. See United States v. Glidden Co., 6 Cir., 119 F.2d 235, ...