Dubois Const. Co. v. Moncla Const. Co.

• Court: Louisiana Supreme Court
• Writing for the Court: Brown
• Citation: Dubois Const. Co. v. Moncla Const. Co., 907 So.2d 855 (La. 2005)
• Decision Date: 29 June 2005
• Docket Number: No. 39,794-CA.,39,794-CA.
• Parties: DUBOIS CONSTRUCTION CO., Plaintiff-Appellee v. MONCLA CONSTRUCTION CO., INC., Defendant-Appellant.

907 So.2d 855

DUBOIS CONSTRUCTION CO., Plaintiff-Appellee v. MONCLA CONSTRUCTION CO., INC., Defendant-Appellant.

No. 39,794-CA.

Court of Appeal of Louisiana, Second Circuit.

June 29, 2005.

Hayter & Odom, L.L.C., by John O. Hayter, III, Shreveport, for Appellant.

Kristen Brown Rockett, Bossier City, for Appellee.

Before BROWN, STEWART, and CARAWAY, JJ.

BROWN, C.J.

Moncla Construction Co., Inc. ("Moncla"), a general contractor, was awarded a contract from the Caddo Parish School Board for the construction of a wing at Shreve Island Elementary School in Shreveport, Louisiana. Moncla contacted Dubois Construction Company ("Dubois") seeking quotes for several surface projects to get the site ready for construction.¹

Moncla accepted Dubois' bid for all but one item that required destruction and removal of a 5,000 square foot concrete slab used for basketball games. In its bid on this part of the project, Dubois quoted a unit price of $2.50 per square foot or $12,500 to break up the slab, load and haul the debris off site. This part of the bid was rejected. Moncla decided to remove the slab itself and did break up the slab. Thereafter, Dubois, who had a dozer, backhoe, and dump truck already on the job site, was asked by Moncla to pick up and pile the debris on site a distance of about 100 yards. No price was mentioned. Dubois used a backhoe to pick up and load the broken concrete into a 14-cubic-yard dump truck. The truck then traveled the 100 yards to another location at the job site and dumped the load. Dubois claimed that this took two days or 16 hours, while Moncla claimed that this task was performed in less than two hours.

Dubois billed Moncla for piling up this debris at a rate of $1.50 per square foot, for a total of $7,500. Moncla, however, calculated the hourly charge for a backhoe at $80 and a dump truck at $40, for a total of $120 per hour. For the two hours Moncla claimed that it took Dubois to perform the work, Moncla paid Dubois $240, along with other amounts owed to Dubois for other work done on the job. Dubois accepted this payment and filed suit against Moncla for the difference of $7,260 in Shreveport City Court.

The trial court referred to the original bid of $2.50 per square foot, for a total of $12,500, as an agreement between the parties. The court then recognized that Moncla actually broke up the slab and reduced the unit price to $1.00 per square foot and awarded Dubois $5,000. Moncla's motion for a new trial was denied and Moncla has appealed. For the reasons set forth below, we amend and, as amended, affirm.

Discussion

La. C.C. art. 1906 states that a contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. A contract is formed by the consent of the parties established through an offer and acceptance. La. C.C. art. 1927. The determination of the existence of a contract is a finding of fact, not to be disturbed unless clearly wrong. Crowe v. Homesplus Manufactured Housing, Inc., 38,382 (La.App. 2d Cir.06/21/04), 877 So.2d 156.

It is clear that no contract existed between these two parties to break up and dispose of the concrete slab at $2.50 per square foot because this offer or bid was rejected by Moncla. In this respect the trial court was clearly wrong. After the rejection, however, the parties had an actual or implied agreement that the debris would be moved by Dubois. This was an entirely different task as opposed to the original request by Moncla and thus, a separate and distinct agreement between the parties. Dubois did not have to break up the slab or haul the debris off site for some distance and no dumping fees would have to be paid. Further, as Dubois testified, because the truck never left the site it could be overloaded.

The fact that the amount of compensation to be received for the services was not agreed upon does not vitiate the contract. La. C.C. art. 2054 provides:

When the parties made no provision for a particular situation, it must be assumed that they intended to bind themselves not only to the express provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose.

Where an agreement exists but the price to be paid is not stated, the court in the context of contractual interpretation must supply the missing price. The technique or measure used to determine recovery varies according to the circumstances of each case. The method to determine the price usually equals the fair market value for the goods or reasonable value for the services that were the object of the contract. Morphy, Makofsky & Masson, Inc. v. Canal Place 2000, 538 So.2d 569 (La.1989).

In Morphy, supra at 574-75, the supreme court stated:

Morphy's remedy at law was to sue on the contract and have the court determine the remuneration he should receive for the services he rendered to CBM, utilizing the codal articles regarding interpretation of agreements. "Where one employs the services of another without specifying what compensation will be paid therefor, or when one avails himself of the services of another in performance of a task, he is bound to compensate the person so employed or who performs such a service." Doll v. Albert Weiblen Marble & Granite Co., 207 La. 769, 22 So.2d 59 (1945). "[Morphy's] claim for compensation should be considered under traditional theories of contract interpretation where a missing but implied term of the contract must be supplied by the court." Porter v. Johnson, 408 So.2d 961, 966 (La.App. 2d Cir.1981).

Where there is a contract for the rendering of services but there is no agreement for the price or compensation, the plaintiff is entitled to be paid for the services rendered under the principles of LSA-C.C. Art....