Dyer Const. Co. v. Ellas Const. Co.

• Decision Date: 20 September 1972
• Docket Number: No. 1271A274,1271A274
• Citation: 287 N.E.2d 262,153 Ind.App. 304
• Parties: DYER CONSTRUCTION CO., INC., (Plaintiff; Counter-Defendant Below), Appellant, v. ELLAS CONSTRUCTION CO., INC., (Defendant; Counter-Claimant Below), and Insurance Company of North America, (Defendant Below), Appellees.
• Court: Indiana Appellate Court

Page 262

287 N.E.2d 262

153 Ind.App. 304

DYER CONSTRUCTION CO., INC., (Plaintiff; Counter-Defendant Below), Appellant, v. ELLAS CONSTRUCTION CO., INC., (Defendant; Counter-Claimant Below) and Insurance Company of North America, (Defendant Below), Appellees.

No. 1271A274.

Court of Appeals of Indiana, Third District.

Sept. 20, 1972.

Ronald V. Aungst, Valparaiso, for appellant; Lyons, Aungst & Guastella, Valparaiso, of counsel.

Gilbert Gruenberg, Bruce E. Sayers, Gary, for appellee; Paul E. Reed, Knox, Hodges, Davis, Gruenberg, Compton & Sayers, Gary, of counsel.

HOFFMAN, Chief Judge.

Two issues are presented by this appeal. The first is whether the finding by the trial court that there was no actual contract in existence between appellant Dyer Construction Co., Inc. (Dyer) and appellees Ellas Construction Co. Inc. and the Insurance Company of North America (appellees are hereinafter referred to as Ellas) was contrary to the evidence. The second issue is whether the trial court erred in subscribing the value of certain items and work performed by the appellant.

The sixth amended complaint filed by plaintiff-appellant Dyer against defendant-appellee Ellas alleged, inter alia, the existence on an oral contract whereby Ellas agreed to pay at the rate of $1.10 per cubic yard for certain materials furnished and services performed by Dyer. Such complaint further alleged the sum of $127,237.70, plus interest, was due and unpaid, and prayed for judgment in such amount.

Defendant-Ellas filed its answer denying each allegation of plaintiff-Dyer's sixth amended complaint. Ellas thereafter filed a counterclaim alleging certain work done and materials furnished to Dyer on other jobs plus cash payments exceeding the amount due from Ellas to Dyer by $26,114.31, and praying for judgment in such amount. Plaintiff-Dyer filed its answer denying each allegation contained in the counterclaim.

Trial was to the court without the intervention of a jury. The court found 'for plaintiff on its complaint on the theory of stipulated amounts and upon quantum meruit' and entered judgment in the amount of $210,981.94. The trial court found 'for defendant on its cross-complaint' and entered judgment in the amount of $230,599.36. Dyer timely filed its motion to correct errors which was overruled by the trial court and Dyer has brought this appeal.

To determine the standard of review controlling in this appeal it must be noted that Dyer was the plaintiff in the trial court and had the burden of proving the allegations of its complaint. A decision against one with the burden of proof is referred to as a negative decision and may not be attacked on the basis that it is not sustained by sufficient evidence. A negative decision may only be attacked as being contrary to law. In Senst v. Bradley (1971), Ind.App., 275 N.E.2d 573, at 576, 28 Ind.Dec. 28, it was stated:

'It is only where the evidence is without conflict and leads to only one conclusion and the Trial Court reached a contrary conclusion that the decision will be disturbed as contrary to law i.e. that is where it affirmatively appears that reasonable men could not have arrived at the same judgment or conclusion. See Edwards v. Wyllie, 246 Ind. 261, 203 N.E.2d 200 (1965).'

See also:

Stidd v. Dietz (1963), 135 Ind.App. 149, 192 N.E.2d 651.

The first issue to be considered is whether the trial court erred in finding that there was no actual contract in existence between the parties. The specific finding of the trial court in the record before us reads as follows:

'The Court is convinced that there was never a meeting of the minds between plaintiff and defendant sufficient to form a contract which could be the basis for legal recovery.'

Dyer contends that the above finding is contrary to the evidence and that the evidence before the trial court leads to but one conclusion--'that there was in fact an implied contract existing between the parties.' This contention is of no avail to Dyer because an implied contract, or a contract implied in fact, is a true contract and as such requires mutual assent. 1 Williston on Contracts (3d Ed. 1957), § 3, pp. 8--11.

In Retter v. Retter (1942), 110 Ind.App. 659, at 663, 664, 40 N.E.2d 385, at 386, it was stated:

'An implied contract, that is, one wherein an agreement is arrived at by the acts and conduct of the parties, is equally as binding as an express contract, wherein the agreement is arrived at by their words, spoken or written. In either case it grows out of the intention of the parties to the transaction. If there has been a meeting of minds and the clear intent of the parties to the transaction is evidenced by their acts and conduct viewed in the light of the surrounding circumstances, then the resultant implied contract differs from an express contract only in the mode of proof. Western Oil Refining Co. v. Underwood, 1925, 83 Ind.App. 488, 149 N.E. 85; Boyd v. Chase, 1929, 89 Ind.App. 374, 166 N.E. 611; Klein v. Niezer & Co., 1930, 92 Ind.App. 43, 169 N.E. 688; 12 Am.Juris., Contracts, p. 498; 17 C.J.S., Contracts, § 4, p. 318.'

In the instant case, the record before us contains approximately 550...