Christensen v. Harris
| Decision Date | 16 December 1920 |
| Docket Number | 33032 |
| Citation | 180 N.W. 325,190 Iowa 256 |
| Parties | WALTER CHRISTENSEN, Appellant, v. E. R. HARRIS, Appellee |
| Court | Iowa Supreme Court |
Appeal from Cerro Gordo District Court.--C. H. KELLEY, Judge.
ACTION in equity to foreclose a mechanics' lien. Plaintiff's petition was dismissed after a trial, and the plaintiff appeals.
Affirmed.
Senneff Bliss, Witwer & Senneff, for appellant.
Blythe Markley, Rule & Smith, for appellee.
1. The petition alleges that, under a written contract between the parties, plaintiff installed in the store building of defendant a hot water heating system, connected with the public heating plant. The contract price, as alleged by plaintiff, and the price or cost in the proposals, accepted by defendant, as she claims, was $ 628. It is conceded that defendant paid $ 200 on the work at one time, $ 250 at another, and that, after the work was done, defendant paid by check $ 178, making a total of $ 628. The check reads that it is "in full." The claim in this action is for $ 142 as extras, for running new heating mains, pipe, ells, labor, etc., which defendant claims were covered by and included in the contract as actually made between the parties. The bill for extras was presented in three bills: one for $ 87.88, for 144 feet of pipe and covering; $ 48.64 for covering pipe; and $ 5.48 for another item,--or a total of $ 142. Plaintiff claims that he presented these three bills to the defendant at the time he asked a payment for the balance of the $ 628, and that she turned down the claim for extras, and gave him a check for $ 178, reciting that it was in full. The defendant denies that the three bills for extras were presented to her as claimed, but says that only the first one was, and that this was after she had paid for all the work; that the other two were never presented to her, until, by letter from an attorney, the two additional bills were included. Defendant objected to the first bill for extras. Plaintiff testifies:
"She didn't understand it; she didn't know what I meant by it."
Defendant told him, at that time, that the $ 628 was in full, and that she wanted a copy of the original contract,--that is, the proposals and acceptance. But instead of giving her a copy of the proposals and acceptance, plaintiff turned the matter over to an attorney for collection. Such is defendant's claim. The manner of presenting these three bills separately for extras was thought by the trial court to be unusual, and he denominated it an afterthought. It appears to us that it was at least unusual to present them as defendant contends, or even as claimed by plaintiff. One bill is dated December 27th, and another, December 30th. They all relate to the same subject-matter, and could as well have been put in one bill, it seems to us. The contract as plaintiff claims it to be is as follows:
"574 five hundred and seventy-four sq. ft. of 3 Colo. 38" Pl H. W. Radiation divided into six units.
"Each radiator to be furnished with 2 1 1/4" N. P. Steam Radiator Valve, and one loose key air valve. All radiators to be silver bronzed. Run 1 1/2" circuit with 1 1/4" chokers between each radiator in basement. Install 1/2" valves so as to drain system.
It will be observed that this contract provides that for $ 628 plaintiff agrees to furnish all material and labor necessary to install a city heating system, etc., and that pipe, fittings, etc., to install a complete job, are to be furnished by party of the second part. While the paper bears date of August 3d, which is the same date as the typewritten proposals, it was not signed for some time afterwards. The original of this typewritten contract has been certified, and in it appear one or two changes, made with pen and ink. The defendant concedes that there were two changes made in the proposals: one of which is that there were to be furnished 2 1 1/4" N. P. steam radiator valves,--and the change from one to two such valves appears in pen and ink in the contract before set out; and further, that, if any changes were made in the drainage system, she would reimburse plaintiff on the basis of time and material. But there was no change in the drainage system. The changes claimed by plaintiff were in regard to additional piping, and so on. The italicized part of the contract before set out does not appear in the typewritten duplicate proposals, and makes a material change therein. Defendant says that the part of the contract in italic was not agreed to, by the proposals, contract, or otherwise. She admits that her signature appears on the contract before set out, and that she supposed she was signing the proposal as an acceptance, and alleges that plaintiff, by fraud and misrepresentation, foisted upon her the contract sued on, and thus secured her signature. After admitting her ownership of the property and so on, and denying other allegations of the petition, defendant says in her answer that, desiring to install heating service from the pipes of the city heating plant, she submitted to plaintiff orally certain things she wanted done, describing them; that bids were asked and received from plaintiff and others; that plaintiff's proposal to defendant to do the work was in writing, but the proposals upon which the writing was based, were oral; that, on September 28, 1917, she wrote plaintiff as follows:
That, in response to said letter, plaintiff brought to defendant at her store what she supposed to be and believed to be a copy of the contract, or written proposals of the plaintiff; that said contract was represented orally to her to be exactly in accordance with the written proposals, and the contract between plaintiff and defendant; and that defendant, relying on the representations of plaintiff that the writing so brought was identical, and a duplicate of the writing before entered into between them, signed the same; that defendant had no notice or knowledge that the contract or agreement was not in accordance with the written proposals of plaintiff which had been accepted by defendant, and that she was misled by plaintiff's misrepresentation that it was a duplicate copy of said proposals; that she never knowingly or intentionally entered into any other or different contract than the one contained in the written proposals of plaintiff on August 3, 1917, accepting the proposals, and agreeing to do the whole of said work, and to furnish all of the materials for the sum of $ 628. She says that she has paid plaintiff the full amount of said contract price, and is not indebted to the plaintiff in any sum. The defendant later found her copy of the proposals, and it was produced and offered in evidence. It should be said that the letter above set out bears date of September 28, 1918; but she claims it was 1917. It is probable that there is a mistake in the month, and in the day of the month, as well. The letter bears internal evidence that it was before 1918, because it was before the work done in December, 1917. Her explanation as to the mistake is not very satisfactory; and in fact she is unable to explain it satisfactorily. The exhibit has been certified, and it appears that she used old paper, one of the letterheads of her husband. The incompleted printed date was 189.., and over the 8 she has written a 9, and added 18, and then wrote the month and day of the month. At any rate, it is contended by defendant, as we understand it, that this letter was written before she signed the contract sued on by plaintiff.
It is claimed by plaintiff that he is entitled to recover, if the contract between the parties is as declared by him. The important question in the case is what the real contract was and this is a question of fact. The principal legal question is as to whether defendant was negligent in signing the contract sued on, and whether she is bound by the contract...
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