Drost v. Professional Bldg. Service Corp.

• Decision Date: 12 September 1972
• Docket Number: No. 172A1,172A1
• Parties: Albin DROST et al., Appellants, v. PROFESSIONAL BUILDING SERVICE CORP., an Illinois corporation, et al., Appellees. . Third District
• Court: Indiana Appellate Court

Page 846

286 N.E.2d 846

153 Ind.App. 273

Albin DROST et al., Appellants, v. PROFESSIONAL BUILDING SERVICE CORP., an Illinois corporation, et al., Appellees.

No. 172A1.

Court of Appeals of Indiana. Third District.

Sept. 12, 1972.

Rehearing Denied Oct. 27, 1972.

Fred Schwanke, Monticello, for appellants.

Frederick Cuppy, Gary, for Hobart Plumbing & Heating.

James Danikolas, East Chicago, for Lake County Glass Co.

George Vann, Kentland, for Professional Bldg. Service Corp.

SHARP, Judge.

This action was originally brought by the Plaintiff-Appellee, Professional Building Services Corp. (PBS Corp.) against the Defendant-Appellants, Albin and Edith Drost, owners, to recover for labor and materials furnished under a written contract for the construction of a building on the Drosts' property and to foreclose a mechanic's lien on said property. Appellees, Lake County Glass Company, Inc. (L.C. Glass) and Hobart Plumbing and Heating, Ind. (Hobart P & H), as subcontractors, and Appellant, Lowell National Bank (Bank), as mortgagee, were joined as defendants and all filed cross-complaints in protection of their respective interests. The Drosts filed a counter claim for damages against PBS Corp. for failure to comply with the terms of the contract.

The cause was submitted and tried to the court without the intervention of a jury. The trial court found for PBS Corp. on its complaint and also found for the subcontractors, L.C. Glass and Hobart P & H on their respective cross-complaints. The trial court found that all the above parties had valid enforceable mechanics' liens on the property in question and were entitled to a judgment of foreclosure and sale of said premises to satisfy said liens. The trial court further found that the mortgage of the Bank had equal priority with the several mechanics' liens and the Bank was therefore entitled to share equally in the proceeds realized from the sale of the property. Finally, the trial court found against the Drosts on their counter claim against the PBS Corp. A corrected judgment was entered whereby PBS Corp. recovered the sum of $36,205.82, plus interest together with attorneys' fees in the amount of $5,568.00, plus costs. L.C. Glass recovered the sum of $13,865.00, plus interest along with attorney fees totaling $2,253.74, and Hobart P & H recovered $3,773.39, plus interest, together with $1,350.00 for attorneys' fees.

The Drosts, as owners of said property, and the Bank, as mortgagee, filed a Motion to Correct Errors, which was overruled by the trial court. The sole assignment of error is the overruling of said motion, which contains the following specifications:

(1) The Findings of the trial court are against the weight of the evidence.

(2) The decision and judgment are not supported by sufficient evidence.

(3) The decision and judgment are contrary to law.

(4) The amount of recovery was excessive.

The evidence most favorable to the Appellees and the judgment below is as follows:

The PBS Corp. through its President, Ralph Hansen, met with the Drosts for the purpose of making a number of preliminary drawings in order to determine a contract price for the construction of a building on the Drost property. Preliminary drawings were prepared by Nathan A. Carras, an architect, and were used furing the initial negotiations. Based on the drawings, PBS Corp. offered to construct the residence for the Drosts for $13,000.00. On November 9, 1967, a written proposal to this effect was tendered to the Drosts, specifically setting forth various items to be covered under the preliminary proposal and offered to do all the work contained in the proposal for the sum of $130,000.00. This initial proposal was not signed by the Drosts because they decided that they didn't want to spend that amount of money. After further discussions, several items including a suspended ceiling, the partitions and the tile floor were specifically eliminated from the proposal. The proposal was then retyped by Richard Drost, son of Albin Drost and Edith Drost, deleting the above mentioned items. The agreement was prepared by the Drosts and was signed by the parties.

The agreement was a written contract dated November 30, 1967 for the construction of a Strand-Steel structure and various components and accessories which were specifically itemized. The contract price of the signed agreement was $113,107.00 and the signed agreement did not contain work for floor tile, carpentry work and interior finish work and ceiling.

Construction was started pursuant to the contract and the preliminary plans but the Drosts consistently requested changes in both the design and concept of the building. Early in 1968 Boyd Dwright, supervisor for PBS Corp. entered into discussions with the Drosts for the purpose of changing the plans. Nathan A. Carras, the architect of the original plans, finally threw up his hands and refused to do any more revisions. The new drawings reflecting the changes were finally prepared by Boyd Dwright and Jack Mathis. Substantial changes were also made to the revised drawings.

The building was completed on January 19, 1969 and the keys to the building were formally given to Albin Drost at that time. Due to the many revisions and changes, both to the plans and requests by letter, the building contained many extra items not covered under the signed contract. An itemized list of these extras not covered under the contract was submitted to the Drosts at a total cost of $15,059.17, bringing the total cost of the building to $128,166.17. Against the amount of extras furnished, the Drosts received a credit for lightning rods, deleted painting of the roof, elimination of a manual door, substitution of chrome drains for those provided in the contract and the difference between the cost of Kimox glass and the type actually used in the building, all in the amount of $1,135.35.

At the time of the completion of the building the Drosts had paid to the PBS Corp. the sum of $90,825.00. The amount due under the contract, together with the extras and additional services requested by the Drosts, after allowing a credit, is the sum of $127,030.82, leaving a balance of $36,205.82.

For the purpose of argument, the Drosts have combined the first two specifications, i.e. the Findings are against the weight of the evidence and the decision is not supported by sufficient evidence, under a single section and we shall also treat them together.

The primary argument raised by this section is that the building was not a residence but rather an office building, and as such was a public building under Ind.Ann.Stat. § 20--421a (Burns 1964) (repealed) that the plans and specifications shall be filed and approved by the director of the administrative building council before construction is commenced. Since this is a public building it was necessary for PBS Corp. to secure building permits from the Newton County Plan Commission and from the Indiana Administrative Building Council. The failure of PBS Corp., it is argued, to secure the necessary permits prevents PBS Corp. complete or substantial performance of the contract.

We must and do reject the above contentions of the Drosts. The signed contract required PBS Corp. to furnish 'all necessary structural drawings and architectual drawings for construction of this facility as described for the use in obtaining the necessary building permits.' The above language only requires that PBS Corp. furnish the plans and does not place an affirmative duty upon it to actually obtain the permits. Also, it was the belief of PBS Corp., based on representations from the Drosts, that the building was to be used as a residence in which Richard Drost would also do a little work. Based on this information, PBS Corp. filed an application for a building permit with the newton County Plan Commission listing the intended use of the building as a residence. The application became misplaced and no permit was ever issued. The trial court found that the parties contracted to build a residence and the finding is supported by the evidence. This court cannot weigh the evidence nor substitute its judgment as to the weight of the evidence for that of the finding and decision of the trial court. Light v. Lend Lease Transportation Company, 129 Ind.App. 234, 156 N.E.2d 94 (1959); Silverstein v. Central Furniture Co., 131 Ind.App. 170, 163 N.E.2d 690 (1960); McKinley v. Overbay, 132 Ind.App. 273, 177 N.E.2d 389 (1961).

But even assuming, but not deciding that the contract was for the construction of a public building and affirmatively called for PBS Corp. to obtain the necessary building permits, this does not represent a valid defense to a suit to foreclose a mechanic's lien. In 26 A.L.R.2d 1395 the annotation considers the question of the failure to obtain a permit as affecting the right to recover compensation and contains the following observation:

'Most of the few cases which have considered the question have taken the view that the failure to obtain a work permit or...