Dawson v. Eldredge
| Decision Date | 15 June 1962 |
| Docket Number | No. 9015,9015 |
| Citation | 84 Idaho 331,372 P.2d 414 |
| Parties | H. W. DAWSON, doing business as Nampa Lumber Co., Plaintiff and Appellant, v. Russell W. ELDREDGE and Erma Eldredge, husband and wife, Defendants and Respondents. |
| Court | Idaho Supreme Court |
Earl E. Reed, Nampa, for appellant.
Davison, Davison & Copple, Boise, for respondents.
Appellant Dawson instituted this action to foreclose a claim of materialman's lien on real property of respondent Eldredge and wife. In his complaint, Dawson claims $5,100.81 as the balance due for goods sold and services rendered in erection of a residence for the Eldredges, and claims reasonable attorneys fees in foreclosing the lien. He prayed for foreclosure of the lien on the property and for its sale.
The Eldredges, by their answer, admitted the furnishing of materials and services, claiming, however, that they were not furnished under an open account, but pursuant to an oral agreement of the parties by which appellant agreed to construct the residence for $14,000. They denied any balance was due except $415.00 still on deposit with the Home Savings and Loan Association. They also cross-claimed for breach of the oral agreement, alleging that Dawson had failed to construct the dwelling in accordance with the agreement, and seeking damages in the amount of $5,000. Dawson answered the cross-claim, denying any oral agreement and further claiming that the Eldredges paid moneys to persons other than himself and that the Eldredges had made changes and increases in the dwelling, which were improperly charged against the funds held by the Loan Association, to be used in construction of the dwelling.
The court submitted to the jury the issues raised by the Eldredges' cross-claim--i. e., whether there was a contract between the parties; if so, whether any failure on Dawson's part in carrying out his obligations uder the contract caused any damages; and the amount of any such damages. At the trial of the action the court reserved to itself those issues pertaining to the balance, if any, due Dawson, and whether such balance was secured by the claim of lien.
The jury returned a verdict in favor of the Eldredges fixing their damages at $1,000.00. The trial court entered judgment on this verdict without consideration of whether any balance remained due to Dawson, or whether such balance was secured by a lien. The trial court later set aside this judgment, entered findings of fact, conclusions of law, and a decree, wherein the court determined there was a contract between the parties to construct the dwelling for $14,000, and that there was some $1,939.49 still due Dawson for materials furnished, offset in part by the sum of $1,000.00 damages. Decree was entered for Dawson for $989.49, but it was held Dawson had waived any lien rights securing such balance.
Dawson moved for a new trial on the grounds that the jury had failed to return a true verdict, that the verdict was contrary to the facts and law. This motion was denied; whereupon this appeal was taken from the judgment and order denying the motion for new trial.
Error is directed to the Court's finding that there was an agreement between Dawson and the Eldredges to construct the residence for $14,000.00. Briefly, appellant's version of the transaction, as shown by his testimony, was that early in 1958 the Eldredges consulted him about construction of a dwelling. They had with them plans previously prepared by an architect, but it was determined that construction of a dwelling based on those plans was beyond their means. Scaled-down plans were agreed upon, and Dawson submitted an estimate of $15,700 for the cost of constructing the smaller version of the dwelling. Dawson would supply the materials, and the Eldredges would employ any person they desired to construct the dwelling, with Dawson helping in any way possible. The Eldredges, being unable to obtain financing, Mr. Dawson undertook on their behalf, to arrange for funds. He negotiated for Eldredges a first mortgage loan with the Home Federal Savings and Loan Association of Nampa, in the amount of $12,000.00, which Dawson, at all times recognized as superior to any claim of lien which he might assert. The Eldredges deposited $2,000.00 with the Association, making a total of $14,000.00 available for construction. In order to make up the difference between the cost as estimated by Dawson and the $14,000 available, the Eldredges agreed to do their own painting, plumbing and electrical wiring, under the guidance of Dawson. Mr. Dawson testified that after the smaller version of the plans had been settled, the Eldredges made other changes in the plans, increasing the costs. He claimed that his only obligation was to furnish materials, not to complete the home at any fixed price.
While the evidence, as submitted by the Eldredges, shows a different version of the transaction, yet certain items are without dispute, including the fact that they were to do the painting and certain parts of the plumbing and electrical work. They also agreed that the roofing material to be used was changed to a higher grade. The area of direct conflict is concerned primarily with whether there was an oral agreement. The Eldredges' testimony is to the effect that when they brought their original plans to Dawson, it became clear that these plans involved construction beyond their means; that the dimensions of the structure were reduced, with a new floor plan being prepared by Mr. Dawson and themselves. Other changes were made in the plans to reduce the costs. Mr. Dawson was quoted as stating he had a man who could do plumbing and electrical work, but who wasn't licensed, that if the Eldredges would help with the work, the plumbing and electrical work could be done in that manner, and that such plan was agreed upon. The Eldredges were unwilling to pay the $15,700.00 figure first quoted, and discussions were had to reduce the plans, culminating in Mr. Dawson and Mr. Eldredge again reducing the final floor plan. After still further discussions, the last plans were somewhat enlarged, and 'Mr. Dawson said he could build it for $14,000.00 and he would secure the loan for us'. Mr. Dawson arranged for the loan, the $2,000.00 was deposited, and the $14,000.00 was made available and work started on the dwelling.
Review of the record indicates substantial, although conflicting, evidence on the question whether there was an oral contract for the construction of the building, or whether it was an arrangement whereby Dawson was merely to furnish materials. Under such circumstances, the finding of the court that there was a contract to build for a sum certain cannot be disturbed on appeal. Williams v. Idaho Potato Starch Co., 73 Idaho 13, 245 P.2d 1045; Lanning v. Sprague, 71 Idaho 138, 227 P.2d 347.
Under the court's instructions, in order for the jury to assess any damages against Dawson it was necessary for them first to determine whether there was a contract. The jury's verdict being for the Eldredges, it is thus inherent in such determination that they first found a contract between these parties. The same rule applicable to the court's findings on substantial, although conflicting, evidence is applicable to findings by the jury. The finding of a contract, inherent in the jury's verdict, likewise, cannot be disturbed on appeal. C. R. Crowley, Inc. v. Soelberg, 81 Idaho 480, 346 P.2d 1063; Seamons v. Spackman, 81 Idaho 361, 341 P.2d 442.
Appellant assigns error in the finding of the court that Dawson had waived his lien rights, and in its determination that he was not entitled to a lien, nor to attorney's fees. Entitlement to attorney's fees is incident to foreclosure of the lien. Willes v. Palmer, 78 Idaho 104, 298 P.2d 972. Thus, if Dawson was not entitled to foreclosure of a lien, he was not entitled to award of attorney's fee.
Dawson in arranging for the loan by the Savings Association executed the following:
'TO: Home Federal Savings and Loan Association, Nampa, Idaho
'For and in consideration of your making a loan of $12,000.00 to Russell W. Eldredge and Erma Eldredge, husband and wife of 924 12th Ave. Road, Nampa, Idaho, proceeds of which will be used in the construction by him of a dwelling on his property located at Route 4, Nampa, Idaho, we do hereby guarantee the completion of the proposed dwelling in a good workmanship manner, free of all liens of any type what-so-ever, including liens for materials and labor, irrespective of whom furnishes such materials or performs such labor.
Respondents contend that this was a complete waiver of all lien rights by the appellant, and the court so found. Appellant, however, urges that this instrument was only between the mortgage holder and himself and did not waive any of his rights, asserting that there being no consideration from respondents to appellant for this waiver, it was ineffective to waive any of his statutory rights to a lien against this property.
Mr. Dawson testified that the association would not make the loan unless this agreement was signed by him. The consideration for this instrument was the granting of the loan by the association to the Eldredges. The benefit to Dawson in having this money available to the Eldredges for construction of the dwelling is sufficient consideration to uphold his agreement. 12 Am.Jur. 570, Contracts § 79. The terms of the agreement guaranteed completion of the 'dwelling * * * free of all liens of any type what-so-ever, including liens for materials and labor, irrespective of whom furnishes such materials or performs such labor.' The agreement was to the association, however, not to the Eldredges; it was not expressed as a waiver of any lien rights, but simply a guarantee to the loan association for completion of the dwelling and against any liens attaching. Inasmuch as the Eldredges were not parties to the agreement, the only way its...
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