Cougar Bay Co., Inc. v. Bristol
| Decision Date | 23 July 1979 |
| Docket Number | No. 12452,12452 |
| Citation | 597 P.2d 1070,100 Idaho 380 |
| Parties | COUGAR BAY COMPANY, INC., an Idaho Corporation, Plaintiff-Respondent, v. Jimmie L. BRISTOL and Donald W. Bristol, a partnership dba Bristol Brothers and dba Pappy's Pizza, Defendants-Appellants. |
| Court | Idaho Supreme Court |
James W. Givens, Lewiston, for defendants-appellants.
Scott W. Reed, Coeur d'Alene, for plaintiff-respondent.
Defendants-appellants, Jimmie and Donald Bristol, d/b/a Bristol Brothers, a partnership, as well as Pappy's Pizza, Inc., bring this appeal from an adverse decision on the merits in district court in favor of the plaintiff-respondent, Cougar Bay Company, Inc. The Bristols appeal results from an action involving the foreclosure of a materialman's lien as a result of a contract to construct a Pappy's Pizza restaurant in Kellogg, Idaho. 1
In the fall of 1973, the Bristols engaged an architect to prepare preliminary drawings for a pizza restaurant to be located upon leased premises in Kellogg. From its inception the restaurant was to be an essentially prefabricated modular structure which would serve as a prototype model for other Pappy's Pizzas to be constructed in other areas in the future. The architect drafted outline specifications for the project in October 1973.
In January 1974, Loren Murphy, vice president of Cougar Bay, began meeting with the Bristols to discuss preliminary plans for the construction of the prototype prefabricated Pappy's Pizza in Kellogg. These meetings together with the architect's preliminary drawing led to Cougar Bay's submission of a written "estimate" on January 30, 1974 estimating the price for construction of the project to be $70,000. Then, on April 30, 1974, Cougar Bay submitted a "summarized projected cost breakdown" for the Kellogg restaurant estimating the cost of construction to be $82,044, including a $7,000 contractor's fee.
By a written agreement dated May 13, 1974, Cougar Bay and the Bristols contracted for the construction of the pizza parlor on the basis of Cougar Bay's April 30 projected cost breakdown and their estimate of the total cost of construction ($82,044). Under the terms of that contract Cougar Bay agreed to commence construction of the project immediately. In return, the Bristols agreed to advance Cougar Bay $10,000 and to secure financing within 90 days of the contract date. If the Bristols obtained financing, the work would proceed in accordance with the plans of the architect; although at the time the parties entered into this agreement, there were no written specifications in existence. Cougar Bay also guaranteed the labor costs would not exceed $21,528 by more than ten percent. Cougar Bay began construction shortly after May 13.
During the initial stages of construction the Bristols sought to secure financing for the project in the amount of $81,304 through the Small Business Administration. (SBA) The testimony elicited at trial indicates that the SBA, as a precondition to approving the Bristols' loan, required them to execute a standard American Institute of Architects contract. (AIA contract) Mr. Murphy of Cougar Bay supplied the Bristols with this form contract which provided among other things that the basis of the payment would be the cost of the work plus a fee. Pursuant to the AIA contract the parties agreed, by virtue of the deletion of section 5.2, that there would be no guaranteed maximum cost on the project; rather, they agreed to an "estimated maximum cost" of $82,044 as per the April 30 projected cost breakdown. The AIA contract also provided for the $7,000 contractor's fee as well as provision for the charge (cost of additional work plus 10%) for any changes in the work during its progress.
The date of the parties' execution of the AIA contract was completely in dispute at trial. Cougar Bay contended that the parties signed it in August on or about the time that it took out a cost bond on the project as required by the SBA. The Bristols argued that they executed it on the date indicated on the first page of the AIA contract April 30, 1974. The trial court found that the preponderance of the evidence indicated that the parties executed the AIA contract in August, 1974.
By November 1974, Cougar Bay had substantially completed the Kellogg Pizza project. Upon completion Cougar Bay presented a final billing, with cost itemization, to the Bristols. The total cost of the work including the cost for work changes and the contractor's fee was $115,348.68. The Bristols acknowledged an increase of $16,215.67 representing charges for work changes, and have paid Cougar Bay a total of $98,259.67. However they contended at trial and now contend on appeal that their obligation should not exceed the $98,259.67 already paid which is the sum of the $82,044 maximum estimated cost and the charge for extra work done.
Cougar Bay then filed a materialman's lien for the balance which the Bristols refused to pay in February 1975 and filed its complaint to foreclose the lien on May 30, 1975. The Bristols answered with a general denial, setting forth the affirmative defense of payment for all services rendered. The case was set for trial without a jury on March 1, 1976. Prior to trial, counsel for the Bristols withdrew from the case. The newly retained counsel attempted to file an "amended answer" two days before the trial and 211 days after the first answer had been filed. In essence the "amended answer" set forth counterclaims against Cougar Bay in the total amount of $600,798.91.
The trial judge denied the motion to amend and the action went to trial. At the conclusion of the trial and upon submission of briefs, the court issued a memorandum decision to the effect that the Bristols were indebted to Cougar Bay in the amount of $14,489.01 and that the lien should be foreclosed in that amount. The court signed findings of fact which were in conformity with the memorandum decision. The Bristols filed a motion...
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