Gill v. Kreutzberg

• Decision Date: 24 June 1975
• Docket Number: CA-CIV,No. 1,1
• Citation: 24 Ariz.App. 207,537 P.2d 44
• Parties: Bob GILL dba Gill Plumbing, Appellant, v. Edward J. KREUTZBERG, James W. Sipos, Nicholas P. Habib and Winston P. Craighead, Appellees. 2626.
• Court: Arizona Court of Appeals

Page 44

537 P.2d 44

24 Ariz.App. 207

Bob GILL dba Gill Plumbing, Appellant, v. Edward J. KREUTZBERG, James W. Sipos, Nicholas P. Habib and Winston P. Craighead, Appellees.

No. 1 CA-CIV 2626.

Court of Appeals of Arizona, Division 1, Department A.

June 24, 1975.

Rehearing Denied Aug. 5, 1975.

[24 Ariz.App. 208] George W. Oglesby, Phoenix, for appellant.

Pasquale R. Cheche, Phoenix, for appellee Kreutzberg.

Allan J. Besbris, Phoenix, for appellees Sipos and Habib.

OPINION

DONOFRIO, Judge.

This is an appeal from a judgment on a suit brought by Bob Gill, dba Gill Plumbing, against the appellees and a corporation in which the individual appellees were once stockholders. The trial court ruled that the corporation was liable to Gill for certain plumbing work his company had done on three houses and two fourplexes, but the court found that the individual defendants were not liable for the debt. The amount in controversy is $6,508.88 which remains unpaid to appellant. We agree with appellant that the amount owing is not in controversy at this time, but that the issue is whether the appellees are legally bound to pay appellant. We hold that the individual appellees are liable for the debt.

Appellant was originally engaged as a plumbing contractor by Black Canyon Construction, Inc. to do the plumbing work on some houses and apartments that it was building for ultimate sale. Originally these individual appellees were stockholders in the corporation. Gill did plumbing work on the structures as ordered by these appellees and other stockholders of the corporation, but was not paid for all of the work done. In October 1971 these four appellees sold their interest in the corporation to another individual, and in the agreement for sale of their stock they agreed to assume the liabilities and take the potential profits from the completion of the five structures on which Gill was the plumbing contractor. The corporation was indebted to Gill at that time for work already done on the partially completed structures. Subsequent to this agreement Gill furnished additional labor and material toward the construction of the five structures for which he was not paid. He filed suit in March 1972 against the corporation and the individual stockholders/defendants for his accumulated debt. Subsequent to filing the suit Gill met with these appellees and the parties arrived at an agreement. In the agreement the appellees, Sipos, Habib and Kreutzberg, assumed the existing debt owed to Gill for work already performed by him, and to induce him to continue and complete the plumbing work on three of the structures not yet completed they agreed to pay him a cash advance plus an additional sum within thirty days thereafter. In the agreement Gill agreed to abate the suit he had filed against them and to dismiss it if they performed in accordance with the agreement. The cash advance was paid and Gill completed the first phase of the work. Thereafter Gill ceased work for the appellees altogether upon their refusal to pay him in accordance with the agreement.

Subsequently appellee Kreutzberg was successful in an effort to get the original suit dismissed on the grounds that Gill was not an intended beneficiary under the October 1971 stock sale agreement. Gill was, however, allowed to amend his complaint setting up the subsequent agreement between himself and the individual appellees as his claim. At the trial before a judge sitting without a jury it was held that the individual appellees Kreutzberg, Habib and Sipos were not liable to Gill but that the corporation was liable for $6,508.88.

Appellees advanced three defenses at trial and since no findings of fact or conclusions of law were made we must look at each to determine whether the court was warranted in finding in favor of the appellees on any one of them.

Throughout the trial of this matter there was an attempt to show some form of attorney misconduct on the part of appellant's attorney due to the fact that he drew up the agreement between Gill and the appellees and that it was signed in his office subsequent to filing the original action and at a time when the defendants were represented by an attorney. We have reviewed the record in its entirety and find no basis for an allegation of attorney misconduct.

Appellees assert first that the agreement of April 14, 1972 between Gill and the appellees was invalid because not supported by consideration. Forbearance to assert a legal claim is valid consideration for a contract. 17 Am.Jur.2d, Contracts §§ 115, 117. At the time this agreement was entered into Gill had already filed suit against ...