Citizens Progress Co., Inc. v. James O. Held & Co., Inc., 2-878A261
| Decision Date | 17 August 1982 |
| Docket Number | No. 2-878A261,2-878A261 |
| Citation | 438 N.E.2d 1016 |
| Parties | CITIZENS PROGRESS COMPANY, INC., Defendant-Appellant, v. JAMES O. HELD & CO., INC., Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Sidney Mishkin, Indianapolis, for defendant-appellant.
John M. Heeter, Seymour M. Bagal, Indianapolis, for plaintiff-appellee.
Plaintiff-appellee James O. Held & Co., Inc. (Held) brought suit for breach of contract against Citizens Progress Company, Inc. (Citizens) in Marion Superior Court. Held claimed Citizens had breached an oral agreement to prepay for material as it arrived in Held's warehouse. Citizens denied the existence of the agreement and counterclaimed for breach of a written construction contract. After a bench trial the court concluded that neither party was entitled to relief and entered judgment accordingly. Only Citizens appeals.
We affirm.
The facts most favorable to support the judgment are as follows: Citizens was the prime contractor for the construction of buildings, courts, and facilities for tennis and other related activities for Racquet Clubs of America, Inc. (Racquet). Citizens entered into negotiations with Held, a specialty contractor, with the view of subcontracting to Held the installation of interior partitions, walls, flooring, ceilings and other facilities. Commencing in early 1972 and continuing through the summer and into the fall, Citizens and Held had many conversations and negotiations encompassing cost, time, materials, etc. It was contemplated that many Racquet facilities would be built throughout the United States. Quantity buying with attendant discounts was discussed. The thread of the negotiations contemplated that the material would be stockpiled in Held's warehouse, and when the metal shell of a Racquet facility was complete, Held would put all the material necessary for its contract on a truck, and with a crew send it to the job site where the work would be expeditiously completed. Some of the stockpiled material would be Citizens', bought and paid for by it outside Held's contract. James O. Held, Held's president, testified of his concern as to how his company would be paid; cash flow to pay bills was an important consideration. He stated that storage was important also because Citizens had no place to store material. Although in the contracting business payments are usually made for 90 percent of the monthly earned estimates, this job was to be different. Held was stockpiling for a number of jobs, and this tied up a lot of money. James Held stated that before Citizens' letter of intent was issued, Citizens agreed to pay for the material when it reached Held's warehouse.
On September 27, 1972, at Held's request, Citizens issued to Held a letter of intent which read as follows:
"This letter will serve as a letter of intent to purchase from you all interior walls, doors and Ceilings as per your quotation for a minimum of six (6) club houses."
Wynn Fields, Vice President and General Manager of Citizens, acknowledged that the quotation was oral. James O. Held further testified that the material selection was oral. Thereafter, Held commenced to order material which, when delivered, was stored in its warehouse. Sometime, the record is vague as to when and how, the number of clubhouses was reduced to four. On October 9, 1972, Held issued to Citizens a document entitled "proposal." An amended version was issued to Citizens on November 8, 1972, entitled proposal no. 951, which stated in pertinent part that:
The proposal was on a printed form and was not addressed to any of the four jobs then being discussed.
On January 31, 1973, Held issued to Citizens invoices for material in their warehouse for each of four contracts, namely, at Lexington, Kentucky; Lawrence, New York; Fort Wayne, Indiana; and Anderson, Indiana. The billings were on Held's letterhead, and were identical in terms and amounts, as follows:
On February 6, 1973, without having paid the January 31 billings, or disputed them except in regard to their amounts, Citizens issued three purchase orders to Held for contracts at Lexington, Lawrence, and Fort Wayne, which were numbered 3436, 3437, and 3438 respectively, each referring to the November 8, 1972 proposal numbered 951. All three were identical in content, but contained an alteration of the November 8 proposal in that the contract price was $12,325 instead of $11,929. The purchase orders contained no method of payment. On February 15, 1973, Held issued three billings for material in the warehouse to Citizens, one for each of the purchase orders, by number and job. They were identical in amounts and are as follows:
"Amount of contract $12,325.00
Value of work and/or material
completed to date 6,284.00
Material 6,284.00
Labor -0-
Less 10% retainage 628.00
Difference 5,656.00
Less previous billings -0-
Amount of this billing 5,656.00"
Testimony by Held witnesses referred to these invoices as amended invoices. They were on the same letterhead, used the same format, and specified the same method of payment as the January 31, 1973 billings.
The crux of the controversy in the appeal is that Held claims that it was entitled to be paid for the material when it reached its warehouse. Held presented evidence that such an oral agreement was made prior to September 27, 1972, and that, when billed, Citizens even came and inventoried the material. Citizens claimed that it was not obligated to pay for the material until it was installed or reached its job site. Held brought this action for breach of contract, and Citizens filed its counterclaim for breach of contract, alleging damages for the excess cost of another contractor whom it employed to perform the contract. From a judgment that neither party should recover, only Citizens appeals. We previously remanded this cause to the trial court because of inadequate findings of fact and conclusions of law. Amended findings and conclusions were filed and are as follows:
"AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
Pursuant to the Order of Indiana Court of Appeals Trial Court now makes and enters its Amended Findings of Fact, Conclusions of Law and Judgment as follows:
FINDINGS OF FACT
1. Plaintiff is an Indiana corporation engaged in business as a specialty contractor with principal place of business in Indianapolis, Indiana.
2. Defendant, Citizens Progress Company, Inc., is engaged in the development and construction of indoor tennis clubhouses. (Defendant, Racquet Clubs of America, Inc., having been dismissed, all reference hereafter is made to Defendant, Citizens Progress Company, Inc.)
3. That in August of 1972 representatives of plaintiff and defendant discussed and agreed that plaintiff would supply and install all interior walls, doors and ceilings for a minimum of six clubhouses to be constructed by defendant.
4. That plaintiff made plans showing the type of interiors to be installed for defendant for a typical clubhouse.
5. That it was agreed that for the benefit of both parties said materials would be pre-purchased by plaintiff, stored in plaintiff's warehouse, that defendant would pay for said materials upon arrival at plaintiff's warehouse and that when defendant's job sites were ready, defendant would notify plaintiff and have said materials delivered.
6. That plaintiff requested prior to pre-purchase of said materials confirmation to proceed, and that on September 27, 1972, defendant by letter entitled Letter of Intent confirmed this for six clubhouses.
7. That subsequently through communication between plaintiff and defendant the number of clubhouses to be supplied with said interiors was reduced to four.
8. That on October 9, 1972, and November 8, [1972], plaintiff provided defendant with price quotations and proceeded to order the interior materials and they were in plaintiff's warehouse by the latter part of December of 1972.
9. That on January 31, 1973, plaintiff billed defendant for the materials in its warehouse for the clubhouses, but defendant responded by saying that the bills were not proper in that they contained charges for overhead and profit, but that otherwise they were proper.
10. That plaintiff agreed in regard to items for overhead and profit and submitted to defendant o...
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