Figgins v. Stevenson

• Citation: 163 Mont. 425,517 P.2d 735,30 St.Rep. 1201
• Decision Date: 28 December 1973
• Docket Number: No. 12563,12563
• Court: United States State Supreme Court of Montana
• Parties: Willie FIGGINS, d/b/a Figgins & Son Excavating, Plaintiffs and Respondents, v. Leslie B. STEVENSON and Marilyn R. Stevenson, husband and wife, Defendants and Appellants.

Page 735

517 P.2d 735

163 Mont. 425

Willie FIGGINS, d/b/a Figgins & Son Excavating, Plaintiffs and Respondents, v. Leslie B. STEVENSON and Marilyn R. Stevenson, husband and wife, Defendants and Appellants.

No. 12563.

Supreme Court of Montana.

Submitted Dec. 4, 1973.

Decided Dec. 28, 1973.

Bennett & Bennett, Lyman H. Bennett, III (argued), Bozeman, for defendants and appellants.

Bolinger & Wellcome, Page Wellcome (argued), Bozeman, for plaintiffs and respondents.

CASTLES, Justice.

This is an appeal from a judgment for plaintiff entered after findings of fact and conclusions of law were made by the court sitting without a jury. Trial was had in Gallatin County, the Hon. W. W. Lessley presiding. The judgment was in the amount of $12,175.75, plus interest at 6% from July 1, 1972, and for attorney fees in the amount of $2,435.15.

The case involves foreclosure of a mechanic's lien by the plaintiff, respondent and cross-appellant, upon campground premises owned by defendants, appellants. On April 20, 1972, plaintiff, Willie Figgins, d/b/a Figgins & Son Excavating, entered into a written contract with defendants Leslie B. Stevenson and Marilyn R. Stevenson, for the construction of a United Campground near Bozeman. Hereinafter the parties will be referred to as Figgins and Stevenson.

The contract was for a fixed price of $19,474.75 and included waterline excavation and backfilling, powerline digging and backfilling, road blading, gravel and a lagoon. Separate contractors were, under separate contracts, to do plumbing, electrical and building so that completion of Figgins' work was dependent on completion by the other contractors. The sewage lagoon, covered by the contract, was deleted deducting an amount of $5,800 from the fixed price leaving a balance of $13,674.75.

The contract provided that work was to commence as soon as the ground was unfrozen. It then provided in pertinent part:

'If the work is not substantially completed on May 27, 1972, then the Contractor shall be charged liquidated damages in the amount of $50.00 per day for each and every day that the completion date exceeds May 27, 1972.

'The Contractor acknowledges that the Owner is relying upon the above stated completion date as a material inducement for his entering into this Contract.'

Then as to payment the contract provides:

'Final payment

'Final payment, constituting the entire unpaid balance of the Contract Sum, shall be paid by the Owner to the Contractor ten (10) days after Substantial Completion of the Work, provided the work has then been completed, the Contract fully performed, and a final Certificate for Payment has been issued by the * * * Owner. Final payment will be made as provided for hereinabove provided the Contractor furnishes the Owner with a mechanic's lien waiver for all labor and materials furnished the project by the Contractor and his suppliers.'

Under miscellaneous provisions are two other pertinent provisions in the contract:

'8.3 The actual staking of the road, roadways, waterlines, sewer line, electrical line, lagoon location and septic location shall be done by Survo, Inc. (formerly Earl R. Best & Associates) on or before April 15, 1972.

'8.5 The Contractor shall not be responsible for any liquidated damages as provided herein if there is any delay resulting from the staking of roads, and lines (defined herein) or result from the delay of other subcontractors failure to cooperate with the Contractor herein.'

The contract was prepared by Stevenson through his lawyer in Minnesota. It was a printed standard form of agreement between owner and contractor with certain items stricken and other items typed in.

On August 3, 1972, Figgins filed a lien against Stevenson's property in the amount of $14,019.75 for labor, equipment and materials. On August 10, 1972, a complaint to foreclose the lien was filed. Pursuant to section 45-513, R.C.M.1947, Stevenson filed a cash bond as a substitute and had the lien discharged. The suit continued against the bond. On September 19, 1972, an answer was filed, alleging that Figgins failed to complete the work on time, and counterclaimed, alleging that a breach of the contract in failing to complete the work on time resulted in loss of rentals and damage in an amount of $4,000; and further, that Figgins' negligence caused damage to Stevenson's building in an amount of $1,500.

Trial was had before the court sitting without a jury. The court found in summary: (1) that Figgins completed the work in the amount of $13,674.75 and that no additional work was done at the instance of Stevenson; but was done at the instance of another building contractor who had a contract with a subsidiary of Stevenson to build a building for Stevenson on the same premises; (2) that no damage to the building was proven by Stevenson; (3) that Figgins did not complete the work on time and owed penalty of 31 days at $50 per day for a total of $1,550, and (4) attorney fees were owed to Figgins.

Thus the court found a net amount due Figgins of $12,175.75 with interest from July 1, 1972, plus attorney fees.

The issues asserted by Stevenson are four:

(1) That the court erred in foreclosing the lien.

(2) That attorney fees were improper and should have been allowed to Stevenson.

(3) That interest was improper.

(4) That damages, rather than the contractual penalty should have been allowed to Stevenson and further that the evidence showed damage to his building caused by Figgins.

Figgins cross-appeals, claiming that the contractual penalty of $50 per day should not have been assessed against him under the evidence since, although his completion was late, the cause of the delay was the other subcontractors and Stevenson.

First of all, in his reply brief, Stevenson charges that the cross-appeal of Figgins is not properly before the Court since Figgins did not file a separate notice of appeal under Rule 4, M.R.App.Civ.P. Suffice it to say that Figgins as respondent did, in his answering brief, set forth clearly his cross-appeal. Rule 14, M.R.App.Civ.P., provides that this Court may review any ruling against respondent and reverse or affirm according to the substantial rights of the respective parties. Accordingly, a cross-appeal by respondent's brief is sufficient to put the issue before this Court.

As to issue No. 1, the thrust of Stevenson's argument is...