Glick v. Seufert Const. & Supply Co., Inc.

• Decision Date: 10 March 1976
• Docket Number: No. 1--675A104,1--675A104
• Citation: 168 Ind.App. 354,342 N.E.2d 874
• Parties: John A. GLICK, Plaintiff-Appellant, v. SEUFERT CONSTRUCTION AND SUPPLY CO., INC., Defendant-Appellee.
• Court: Indiana Appellate Court

Page 874

342 N.E.2d 874

168 Ind.App. 354

John A. GLICK, Plaintiff-Appellant, v. SEUFERT CONSTRUCTION AND SUPPLY CO., INC., Defendant-Appellee.

No. 1--675A104.

Court of Appeals of Indiana, First District.

March 10, 1976.

F. Jefferson Crump, III, Jewell, Crump & Angermeier, Columbus, for plaintiff-appellant.

John S. Chappell, Jasper, for defendant-appellee.

ROBERTSON, Chief Judge.

Plaintiff-appellant, Glick, brings this appeal from a negative judgment entered on his complaint against defendant-appellee, Seufert, for the recovery of the reasonable value of services rendered on a construction project.

The sole issue upon appeal is whether the trial court's judgment is contrary to law.

This case arises out of the construction of a convalescent care center in Hope, Indiana, undertaken by Seufert Construction Co. (Seufert), the legal owner of the real estate and general contractor, for Harold Chandler, the contract purchaser and present operator of the center. As the general contractor, Seufert engaged various subcontractors including Glick, an experienced local contractor, and Patoka Valley Plumbing and Heating Co. Glick was hired directly by Seufert for several portions of the construction including digging footings and hauling rock, while Patoka was engaged as the subcontractor for the installation of the plumbing and heating equipment on the project. Glick was also hired by Patoka for portions of work it had contracted to do.

Problems developed in the middle of January of 1973. (The evidence is in conflict as to what actually occurred during this period.)

Patoka contracted with Glick to complete the plumbing work on the project. Glick claimed that he had heard that Patoka was ordered off the job, so he ceased work. At this time Glick met with Chandler and Jim Leinenbach, Seufert's construction superintendent. According to Glick, the three recognized that Patoka had discontinued its plumbing work, that large portions of the work had been done incorrectly, and that because of these facts the finish work on the entire project was being delayed well beyond the scheduled completion date.

Leinenbach asked Glick to finish the plumbing work, acknowledging that it would not get done otherwise. Glick refused to continue until he knew who would pay him. Leinenbach told him to go ahead and that he would 'try to help him get his money.' Upon that assurance, Glick proceeded to finish the heating and plumbing work on the project, which involved the correction of much of the work previously undertaken by Patoka.

Seufert claims that Glick's only agreement was with Patoka, who was in fact, never dismissed from the job. Seufert contends that it did not object to the arrangement and even went so far as to tell Glick that Seufert would attempt to see that Patoka paid Glick for his work. According to Wayne Seufert, the company president, this meant only that Seufert would apply pressure to Patoka by withholding contract payments, and was not an express promise to directly compensate Glick.

Glick proceeded to finish and correct the plumbing work, and Leinenbach inspected the site weekly from the middle of January until the first part of May when the project was completed. Glick stated that during those inspections he checked with Leinenbach on problems that had arisen and was told to go ahead and fix those problems brought to Leinenbach's attention. Wayne Seufert visited the site on two occasions during this period and commented to Glick that he was doing a good job and urged him to finish his work as soon as possible.

Glick finished most of his work around the first of April and on April 7, 1973, sent a statement in the amount of $5,528.14 to Patoka. About three months later, payment had not been received despite several further notices. Glick then sent a copy of the statement to Seufert and requested payment. Wayne Seufert responded that Glick had failed to promptly notify Seufert of Patoka's nonpayment and that as a result Seufert had paid Patoka in full under the terms of the contract. Seufert stated that he was now powerless to help Glick obtain his money from Patoka. Despite Seufert's objection, Glick continued to send several notices to Seufert demanding payment for the work performed.

Finally, on February 25, 1974, Glick filed suit against Seufert and Patoka. Both were served and appearances were entered for each. A default judgment was entered against Patoka on October 16, 1974. Seufert filed its answer in general denial of the complaint and trial was set for November 22, 1974. On December 19, 1974, the trial court entered judgment against Glick and in favor of Seufert.

Glick brings this appeal contending that the judgment is contrary to law.

Glick acknowledges that our standard of review of a negative judgment places a heavy burden upon a plaintiff-appellant seeking a reversal.

'The standard of review which limits our consideration of this issue is well established. It is only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion, that the decision of the trial court will be set aside on the ground that it is contrary to law. Pokraka v. Lummus Co. (1951), 230 Ind. 523, 104 N.E.2d 669'. Lamb v. Conder (1975), Ind.App., 335 N.E.2d 625.

Glick contends that the judgment is contrary to law in that the evidence is without conflict and leads only to the conclusion that he should recover against Seufert on either of two theories; account stated or quantum meruit.

Glick first argues that the evidence establishes as a matter of law that an account was stated between Glick and Seufert in the amount of $5,528.14.

An account stated is defined as an agreement that items of account and the balance struck are correct, together with a promise, express or implied, to pay the balance. Walsh v. Fulton County Farm Bureau Coop. Assoc. (1969), 146 Ind.App. 42, 252 N.E.2d 609; 1 I.L.E., Accounts and Accounting §§ 31, 32, p. 60.

'The general rule on an account stated, is that there must have been:

'. . . prior dealings between the parties, and after an examination of all the items by each of the parties, they must have mutually agreed upon the items of the account, and that the balance struck is just and due from the party against whom it is stated.' Bosson v. Brash (1916), 63 Ind.App. 86, at p. 89, 114 N.E. 6 at p. 7.' Bottema v. Hendricks County Farm Bureau Coop. Ass'n, Inc. (1974), Ind.App., 306 N.E.2d 128, 130.

Glick correctly asserts that while an account stated requires an agreement that the items of account and the balance are correct, the agreement may be inferred from delivery of the statement and the recipient's failure to object within a reasonable time. First National Bank of Tipton v. Peck (1913), 180 Ind. 649, 103 N.E. 643; Burns Construction, Inc. v. Valley Concrete (1975), Ind.App., 322 N.E.2d 404.

However, the record in the present case discloses that Seufert did make objection to the first statement which he received from Glick, and once an objection is made to an account, further objection to subsequently received statements is not required. Walsh v. Fulton County Farm Bureau Coop. Assoc., supra; Jasper Corporation v. Manufacturers' Appraisal Co. (1972), 153 Ind.App. 457, 287 N.E.2d 781.

Furthermore, Seufert defended the entire suit upon the basis that there was never any agreement between Seufert and Glick. If that were true, it is doubtful that Seufert could be burdened with the duty to object to the statement of account to prevent being bound thereon. In other words, if there was never an agreement between the two parties, one party may not submit a bill to another and upon that party's failure to object, sue for the amount stated since there would be no duty to object to the statement of account.

At any rate, the evidence did not lead only to the conclusion that...