Ed Sparks and Sons v. Joe Campbell Const. Co.

• Decision Date: 08 May 1978
• Docket Number: No. 12240,12240
• Citation: 99 Idaho 139,578 P.2d 681
• Court: Idaho Supreme Court
• Parties: ED SPARKS & SONS, a sole proprietorship, Plaintiff-Respondent, v. JOE CAMPBELL CONSTRUCTION COMPANY, Joe Campbell, and Fireman's American Insurance Company, Defendants-Appellants.

Page 681

578 P.2d 681

99 Idaho 139

ED SPARKS & SONS, a sole proprietorship, Plaintiff-Respondent, v. JOE CAMPBELL CONSTRUCTION COMPANY, Joe Campbell, and Fireman's American Insurance Company, Defendants-Appellants.

No. 12240.

Supreme Court of Idaho.

May 8, 1978.

Rehearing Denied May 31, 1978.

R. Don Bistline, Pocatello, for defendants-appellants.

Gary L. Cooper of Racine, Huntley & Olson, Pocatello, for plaintiff-respondent.

SHEPARD, Chief Justice.

This is an appeal from a judgment awarding plaintiff-respondent Ed Sparks & Sons the balance of the contract price set forth in a construction contract. The principal question presented is whether there was sufficient evidence of a mutual mistake to sustain the district court's reformation of the contract and thereby exclude certain items otherwise required to be performed by Sparks. We reverse.

Joe Campbell Construction Company held a contract with the State of Idaho to demolish a building and construct a parking lot on the campus of Idaho State University. In turn, Sparks submitted a bid to Campbell offering to perform the demolition and site restoration work. Sparks' bid was for $21,079 and, according to Sparks, did not include that portion of Campbell's work requiring concrete and blacktopping work. Campbell and Sparks met at and inspected the job site, and that evening the terms of the contract were discussed in Campbell's office. It is undisputed that Campbell made a statement to the effect that he wanted to wash his hands of the whole project except the blacktopping work. There is a dispute in the evidence as to whether at the termination of that meeting Sparks took the complete blueprints and specifications for the entire job for additional study or, as the trial court found, that Sparks took only that portion of the blueprints and specifications which dealt with the demolition and site restoration portion of the work while the remainder of the documents relating to the construction phase of the work remained in Campbell's possession. Thereafter, Campbell's attorney prepared the contract on one of Sparks' proposal forms. The following week the parties met, read the contract, pencilled in some changes and signed the document. Clearly, that written contract required Sparks to perform all portions of the work excepting only the "blacktopping." Sparks testified that he read the contract term "blacktopping" to include curbs and gutters (concrete work).

Sparks proceeded with the demolition and site restoration work. Sparks' foreman, John Roe, testified that at no time while they were on the job was the concrete work mentioned. Roe also testified that when the demolition work was approximately three-quarters complete, he consulted with Campbell regarding leveling the dirt and Campbell indicated that he would send over his "concrete man," although he ultimately sent over engineers from the school. At the conclusion of the demolition and site restoration work, Roe consulted with Campbell to determine if the work was satisfactory, and Campbell asked who was supposed to put down the base. When told it was his responsibility, Campbell said, "Fine."

Thereafter, Campbell called Dale Sparks, a partner in the company, to inform him that Sparks was to do the concrete work. Sparks denied they had responsibility to do the work. Thereafter letters were sent to Sparks, and when he continued to refuse, Campbell did the remainder of the work and subtracted the cost thereof from the contract price otherwise owed Sparks. It is that amount for which Sparks initiated this action.

This case was before the Court earlier in Sparks v. Campbell, 96 Idaho 454, 530 P.2d 938 (1974). At that time a summary judgment had been awarded to Campbell. Sparks appealed on the basis that there was a genuine issue of material fact undetermined, i. e., whether there was a "mutual mistake." The Court reversed and remanded the case for trial, providing that Sparks had to meet his burden of proof as to a mutual mistake with "clear and satisfactory evidence." Proof of mutual mistake requires a clear and satisfactory showing that the written instrument fails to represent the parties' intentions at the time of its execution. Collins v. Parkinson, 96 Idaho 294, 527 P.2d 1252 (1974); Bilbao v. Krettinger, 91 Idaho 69, 415 P.2d 712 (1966); Metropolitan Life Ins. Co. v. McClelland, 57 Idaho 139, 63 P.2d 657 (1936); Brinton v. Johnson, 41 Idaho 583, 240 P. 859 (1925); Panhandle Lumber Co. v. Rancour, 24 Idaho 603, 135 P. 558 (1913); G. Bell, Handbook of Evidence for the Idaho Lawyer 197 (2d ed. 1972). Campbell argues that the evidence at best only supports the finding of a unilateral mistake rather than a mutual mistake. We agree.

Ordinarily, this Court would rely upon a trial court to weigh the evidence. Panhandle Lumber Co. v. Rancour, supra. However, in this case the evidence did not meet a standard of "clear and satisfactory evidence." That standard imposes a need for certainty, and here it is clear that the trial court's usage of language, such as "tends," "apparently," "tentatively" and " could," is incompatible with a view that the evidence has certainty and is highly probable.

Additionally, certain evidence obviously relied upon by the...