Evenson Masonry Inc. v. Eldred

Decision Date18 December 1975
Citation273 Or. 770,543 P.2d 663
PartiesEVENSON MASONRY INCORPORATED, an Oregon Corporation, Respondent, v. Clif ELDRED and Dorley Eldred, husband and wife, Appellants. . In Banc
CourtOregon Supreme Court

Robert J. Thorbeck, Salem, argued the cause and filed a brief for appellants.

D. Michael Mills, Salem, argued the cause for respondent. With him on the brief were Mills & McMillin, Salem.

DENECKE, Justice.

The plaintiff claims a balance due on a construction contract performed for the defendants. In issue is the interpretation of the construction contract. The trial court, sitting without a jury, found for plaintiff. Defendants appeal.

The plaintiff agreed to perform masonry work on a building defendants were constructing for themselves. The agreement was in the form of a proposal prepared by plaintiff and accepted by defendants. Plaintiff contends the agreement as to the price was cost plus 10 per cent profit. Defendants contend the agreement was cost plus 10 per cent profit but not to exceed $13,200. The trial court found plaintiff was entitled to a total of about $15,000, less prior payments made by defendants.

Typed on the printed proposal form was the following:

'd) Conditions of job to be a cost plus 10% Profit. Based on a bid of $13,200.00. This bid was to establish a ceiling bid to work from in hopes of, say money for the Eldreds.

'e) So extras to be worked into the bid of $13,200.00 price, such as window trims, bolts, extra brick walls other than bid with (inside partitions) steel hintels (sic) over openings;

'f) Evenson to produce invoices and labor prices to Eldreds at completion of job to prove costs for said job:

'This will determine final price of job, Hoping to be below $13,200.00 total cost.'

The trial court was of the opinion that the cost or price terms of the contract were unclear and, therefore, it received extrinsic evidence to assist in interpreting the terms. The trial court then determined that the contract provided that the price was to be cost plus 10 per cent profit with no ceiling.

Whether a contract is ambiguous or uncertain is a question of law and, therefore, the decision of the trial court on the issue of ambiguity is reviewable by the appellate court. Lee v. State Farm Auto Inc., 265 Or. 1, 3, 507 P.2d 6 (1973). We conclude, as did the trial court, that this contract is ambiguous.

Some of the language indicates that the agreement fixed $13,200 as a ceiling. Other language, however, indicates that $13,200 or less was a 'hoped for' cost plus a 10 per cent profit figure but not a ceiling. For this reason the trial court was correct in using extrinsic evidence to...

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21 cases
  • Banister Continental Corp. v. Northwest Pipeline Corp.
    • United States
    • Oregon Court of Appeals
    • 10 January 1986
    ...to the jury, the court must first determine, as a matter of law, that a contract provision is ambiguous. Evenson Masonry, Inc. v. Eldred, 273 Or. 770, 772, 543 P.2d 663 (1975); Sunset Coatings Co., Inv. v. Dept. of Trans., supra, 62 Or.App. at 56, 660 P.2d Here, about the only thing the par......
  • Allmerica Fin. Life Ins. & Annuity Co. v. Llewellyn, Civil No. 94-1309-JO.
    • United States
    • U.S. District Court — District of Oregon
    • 23 July 1996
    ...836 P.2d at 706; Archdiocese at 1328. If the term is ambiguous, the trier of fact resolves the ambiguity. Evenson Masonry, Inc. v. Eldred, 273 Or. 770, 772, 543 P.2d 663, 664 (1975) (citing May v. Chicago Insurance Co., 260 Or. 285, 292-93, 490 P.2d 150 In the present action, I find the lan......
  • Grants Pass Imaging & Diagnostic Ctr., LLC v. Marchini
    • United States
    • Oregon Court of Appeals
    • 25 March 2015
    ...ambiguous is a question of law. Abercrombie v. Hayden Corp., 320 Or. 279, 292, 883 P.2d 845 (1994) (citing Evenson Masonry, Inc. v. Eldred, 273 Or. 770, 772, 543 P.2d 663 (1975) ). “Words or terms of a contract are ambiguous when they reasonably can, in context, be given more than one meani......
  • Abercrombie v. Hayden Corp.
    • United States
    • Oregon Supreme Court
    • 13 December 1994
    ...the terms of an agreement are ambiguous is in the first instance a question of law for the trial court. Evenson Masonry, Inc. v. Eldred, 273 Or. 770, 772, 543 P.2d 663 (1975). The trial court may consider parol and other extrinsic evidence to determine whether the terms of an agreement are ......
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