Dougherty v. Beckman, s. 14018

• Decision Date: 28 October 1983
• Docket Number: Nos. 14018,14026,s. 14018
• Citation: 347 N.W.2d 587
• Parties: Richard E. DOUGHERTY, Plaintiff and Appellee, v. Patrick J. BECKMAN and Henry Carlson, d/b/a B & C Partnership, Defendants and Appellants. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 587

347 N.W.2d 587

Richard E. DOUGHERTY, Plaintiff and Appellee, v. Patrick J. BECKMAN and Henry Carlson, d/b/a B & C Partnership, Defendants and Appellants.

Nos. 14018, 14026.

Supreme Court of South Dakota.

Considered on Briefs Oct. 28, 1983.

Decided April 25, 1984.

John Burke, Sioux Falls, for plaintiff and appellee.

James E. McMahon of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for defendants and appellants.

BERNDT, Circuit Judge.

CASE HISTORY

This action arose from a disagreement over the price of a townhouse constructed by defendants for plaintiff. Construction was completed May 3, 1981, and plaintiff tendered defendants $172,739 as full payment for the townhouse. Defendants returned the tender. Plaintiff filed a complaint on July 1, 1981, asking for a permanent injunction enjoining defendants from disposing of the townhouse except through a warranty deed to him during the pendency of the action. Plaintiff requested an order for specific performance ordering defendants to convey real property to plaintiff in exchange for $172,739. Defendants counterclaimed, asking that the contract between the parties be rescinded and that defendants be awarded interest on the money they had used to build the townhouse. In the alternative, defendants asked that plaintiff be required to pay $202,195.93, plus interest thereon from April 17, 1981, if the court granted specific performance.

After trial, the court decided that plaintiff should be allowed to complete the purchase of the townhouse for a total of $196,400. It found that plaintiff paid a total of $28,400 and tendered an additional amount of $144,339, totaling $172,739. The court found that the tender was refused and the money returned to plaintiff on June 12, 1981. The trial court held that this tender stopped the interest on this amount from June 12, 1981, but that interest on the difference of $23,661 should be paid from June 12, 1981, to the date of final payment, and that total payment would be a condition precedent to the requirement of specific performance. The court also provided that failure to make the required payment within a specified time would constitute a forfeiture and would terminate any interest plaintiff had under the contract, or otherwise.

After the trial plaintiff paid to defendants $200,995, which was the Court's purchase price of $196,400, plus interest on $23,661 of the purchase price from June 12, 1981, to date of payment. The defendants conveyed the property to plaintiff. Defendants then filed a notice of appeal and plaintiff filed a notice of review. The defendants

appealed only the issue of whether the trial court erred in denying them recovery of pre-judgment interest on $172,739. Plaintiff's notice of review asked the Court to review the purchase price set by the trial court for specific performance.

FACTS

In a contract executed in 1977 with plaintiff, defendants agreed to construct a townhouse in Sioux Falls, South Dakota, "to be finished, according to specifications and plans, designated as Plan No. 9-19." The purchase price agreed upon was $142,000. The contract states that no extras are included in the contract price unless they are set forth in the contract. The only extras to be included in the townhouse plaintiff contracted for, were set forth in an Addendum to the contract.

Two years later plaintiff hired architect Ward Whitwam to incorporate changes he wished to make to the original floor plan. In January, 1980, Whitwam made additional changes in the floor plan of the townhouse. These revisions included major structural changes, such as adding an additional 12 percent in interior wall partitions, requiring double framing in some areas, adding an additional 112 square feet of living area, finishing off the entire basement area, adding additional windows and, finally, adding additional sliding doors.

Defendants were not willing to construct the townhouse with these major revisions for the price stated in the original contract. Defendant Carlson, therefore, wrote a letter to plaintiff on February 27, 1980 (the February 27th letter), telling plaintiff that they would construct the townhouse according to the revised plans and information they had as of that date for $180,000. In the alternative, defendant Carlson told plaintiff that defendants would be willing to return plaintiff's deposit and pay the architectural fees he had incurred.

Pursuant to defendant Carlson's letter, a meeting was held at attorney John Burke's office. The purpose of the meeting was to discuss defendant Carlson's letter of February 27, 1980. Plaintiff apparently agreed to accept the terms of the February 27th letter. Defendant Beckman noted this acceptance on the bottom of his copy of defendant Carlson's letter.

Plaintiff made even more revisions to the floor plan for the townhouse on July 25, 1980, and October 14, 1980. In addition, plaintiff, or his wife, requested that numerous extras be added to the townhouse. All of these items were included in the townhouse when it was completed and ready for occupancy April 17, 1981. Several dates for finalizing the transfer of the property were set and cancelled by plaintiff for one reason or another. Defendant Beckman and plaintiff finally met on May 3, 1981, to close the transaction. Plaintiff refused to pay the $202,195.93 demanded by defendants for the completed townhouse but, instead, offered defendants $172,739 as full payment. Plaintiff's offer was refused and all the money he had paid to defendants was returned to him on June 12, 1981.

DISCUSSION

The two issues requiring resolution are:

(1) The price of the townhouse

(2) The award of pre-judgment interest

The Price of the Townhouse

Plaintiff's brief concedes that the central issue in the case is the amount owed by plaintiff to defendants for the construction work. The major dispute is whether the $142,000 figure delineated in the contract is binding or whether the $162,500 sum, as quoted in the February 27th letter, controls this case. The trial court held that the latter sum was correct.

The contract provides guidance. The pivotal language is:

Which property the undersigned, as agent for the owner, has this day sold to the buyer for the sum of $142,000 ... Included in the above price are the following extras: (none, if not set forth) $142,000 will be the ceiling price of the home. If selling price comparable to # 9 floor plan is less--the price will be adjusted accordingly. Any minor changes will be included in the price of home--but large structural changes could effect [sic] the price of the home.

After defendants began construction, plaintiff insisted upon substantial revisions which greatly increased the cost of construction. Thereafter, defendants sent the February 27th letter advising that "[w]e are willing to complete your townhouse for the sum of $162,500 ...". Defendants contend that plaintiff adopted this letter and its $162,500 figure or, in the alternative, that the contractual caveat of "large structural changes ... effect[ing] [sic] the price" justifies not applying the $142,000 price. Under either the original contract or the February 27th letter, defendants appear entitled to the higher sum ($162,500). Considering first the contract, it is crucial that defendants included as part of the agreement that, along with a $142,000 price tag, "large structural changes could effect [sic] the price of the home." Whatever the full breadth of the phrase "large structural changes" may be, it would certainly seem to embrace the substantial revisions to the original floor plan plaintiff demanded. Plaintiff's consent to the contractual language now precludes any black letter reading of the $142,000. Therefore, the trial court's decision to award the higher figure was correct.

Regardless of the contract, it appears that plaintiff adopted the February 27th letter (and its offer of $162,500). There is ample evidence in the record that plaintiff adopted the $162,500 price proposal. Further, defendants began construction of the townhouse after this letter was received and acknowledged by plaintiff. If plaintiff objected to the $162,500 price, he should have insisted that defendants cease construction. Absent such objection, plaintiff cannot now be heard that he did not consent to the higher figure. Therefore, $162,500, as found by the trial court, is a proper base price.

The core dispute as to the amount due in this suit, surrounded the base price--$142,000 versus $162,500. The costs to finish the basement, as well as the extras, are not in dispute. Therefore, the trial court's award of $196,400 is justified. For this court to reverse the trial court's findings, this court must find that they were clearly erroneous. SDCL 15-6-52(a); Reif v. Smith, 319 N.W.2d 815 (S.D.1982). Upon review, the evidence and inferences therefrom must be viewed in a light most favorable to uphold the verdict and, if there is competent and substantial evidence to support the verdict, it must be upheld. ^*

Pre-Judgment Interest

A related issue is the amount now due the defendants for pre-judgment interest. The empowering statute for pre-judgment interest is SDCL 21-1-11, which provides:

Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor, from paying the debt.

In Beka v. Lithium Corp. of America, 77 S.D. 370, 92 N.W.2d 156, 159 (1958), we interpreted this statute and held:

The mere fact that the claim is disputed does not defeat the allowance of interest. Corcoran v. Halloran, 20 S.D. 384, 107 N.W. 210. As applied to this case our statute was construed by this court in Gearhart v. Hyde, 39 S.D. 273, 164 N.W. 58. The rule announced in that case is that interest is...