Ed Sparks and Sons v. Joe Campbell Const. Co., 11615

• Decision Date: 26 December 1974
• Docket Number: No. 11615,11615
• Citation: 96 Idaho 454,530 P.2d 938
• Court: Idaho Supreme Court
• Parties: ED SPARKS & SONS, a sole proprietorship, Plaintiff-Appellant, v. JOE CAMPBELL CONSTRUCTION COMPANY, an Idaho Corporation, and Fireman's Fund American Insurance Company, defendants-Respondents.

Page 938

530 P.2d 938

96 Idaho 454

ED SPARKS & SONS, a sole proprietorship, Plaintiff-Appellant, v. JOE CAMPBELL CONSTRUCTION COMPANY, an Idaho Corporation, and Fireman's Fund American Insurance Company, defendants-Respondents.

No. 11615.

Supreme Court of Idaho.

Dec. 26, 1974.

Rehearing Denied Jan. 30, 1975.

Robert C. Huntley, Jr., of Racine, Huntley & Olson, Pocatello, for plaintiff-appellant. R. Don Bistline, Pocatello, for defendants-respondents.

SHEPARD, Chief Justice.

This is an appeal from a summary judgment granted in favor of the defendant in a construction contract case. Plaintiff complained that it had performed certain construction work as a subcontractor under an agreement with the defendant and that defendant had failed to pay plaintiff the total agreed upon sum. Defendant answered contending that the agreement had been reduced to writing and that plaintiff had failed to perform all the work required of the plaintiff under the written contract. The district court granted summary judgment to the defendant on the basis that the agreement was set forth in the written contract and the court could not remake the contract for the parties.

In 1973 defendant-respondent Campbell, in response to a solication for bids, submitted the low bid and was awarded a contract for a construction project on the campus of Idaho State University. That contract required the demolition of a building, the removal of debris, the construction of concrete curb and gutter and sidewalks, and an asphalt parking lot. Plaintiff-appellant Sparks agreed with Campbell to subcontract a portion of that work. The instant controversy involves the amount of work for which Sparks contracted.

Sparks contends that the parties agreed that Sparks was to perform the demolition and removal of debris work for $21,079. This Campbell denies, pointing to a written contract exceuted by the parties requiring Sparks to do all of the work 'except the blacktopping.' Sparks contends that the written contract does not express the agreement arrived at between the parties.

At the heart of this controversy is the required concrete work. Sparks failed to complete the concrete work whereupon Campbell hired another to do the concrete work and refused to pay Sparks the $21,079 set forth in the written contract. Following the institution of suit by Sparks against Campbell and Fireman's Fund (the obligor on Campbell's payment bond) Campbell paid Sparks $11,613.75, being essentially the difference between $21,079, and the cost of the concrete work.

The only substantial question in this cause is whether there existed genuine issues of material facts which made the entry of summary judgment jmproper. In its complaint, Sparks alleged the existence of an agreement between the parties for the payment of certain moneys upon the performance of certain work. It alleged the performance of the work and the nonpayment of the money. Defendant, on the other hand, alleged the existence of a written contract and the failure of the plaintiff to perform the work required of it under the contract. Although Sparks did not specifically plead for reformation of the written contract, such was argued in the lower court and here upon appeal.

We need not decide questions of the validity of an oral contract and subsequent merger into a written contract inasmuch as this case has been argued here as one for reformation and upon that theory the decision is based.

We note that IRCP 54(c) provides:

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'Every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.'

In this matter neithr the trial judge nor we upon appeal are restricted to a consideration of the pleadings. Here extensive affidavits and depositions...