Gorbett v. Claycamp
| Decision Date | 14 September 1989 |
| Docket Number | No. 36A04-8811-CV-396,36A04-8811-CV-396 |
| Citation | 543 N.E.2d 401 |
| Parties | William D. GORBETT, Appellant (Defendant Below), v. Gilbert CLAYCAMP, d/b/a Claycamp Excavating, Inc., Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Thomas M. Barr, Nashville, for appellant.
Jeffrey J. Lorenzo, Seymour, for appellee.
Defendant-Appellant William D. Gorbett (Gorbett) appeals the Jackson Superior Court's judgment awarding Plaintiff-Appellee Gilbert Claycamp, d/b/a Claycamp Excavating Co. (Claycamp) $3,000 with interest and costs as the amount due and unpaid for excavating a pond on Gorbett's real estate.
We reverse.
(b) consideration to support modification of the original agreement, and
(c) Claycamp was entitled to recover on the basis of an implied or quasi-contract.
In addition, Claycamp presents the following issue:
whether Gorbett would be unjustly enriched if he were not required to pay for Claycamp's additional work performed under the modification agreement.
Gorbett, considering the purchase of some land in Jackson County, discussed building a pond thereon with Claycamp, an experienced pond builder. At that time, Claycamp told Gorbett he could build a pond on the property for $3,000 at $1.50 per yard of earth moved and grade a nearby hillside for an additional $1,000 to $1,500. Gorbett then arranged with Mike Cheatham from the local Soil Conservation Service (SCS) to study the ground and sketch a pond plan. He did so, then laid out the pond he proposed by setting flags outlining it on the property. Claycamp saw the flag marked area and agreed to build the pond for a $3,000 flat fee. It was to be 100 feet square and 12 feet deep. However, the SCS flags were removed later by the owner from whom Gorbett was purchasing the property.
When Claycamp moved his equipment onto the property to begin work, Gorbett replaced the missing flags substantially as they had been before removal. However, he changed the design several times by rearranging the flags as the excavation work was progressing. Gorbett's final design measured 100 feet by 200 feet by 12 feet deep. While rearranging the flags, Gorbett advised Claycamp he was "only going to do this once in a lifetime," and wanted it to look a certain way (R. 121).
While Gorbett believed Claycamp was doing the work for the original $3,000 figure, Claycamp believed he was doing it for either a per yard moved rate or an hourly equipment rental rate due to the changes Gorbett was making.
Gorbett never told Claycamp how many dollars he wanted to spend, nor advised Claycamp to stop building the pond, to build a smaller pond, or that he did not want to pay by the hour or by the cubic yard. Conversely, Claycamp never told Gorbett he was proceeding on either a per yard or per hour rather than a flat fee basis. While the work was in progress, Gorbett daily would ask Claycamp regarding cost, "How are you running?" Claycamp would reply,
Claycamp's final bill totalled $7,123.07, computed at the rate of $75 per hour for equipment rental. Gorbett paid him the agreed sum, but refused to pay more. From a judgment for Claycamp after a court trial, Gorbett appeals. Further facts as necessary appear later in this opinion.
The central thrust of Gorbett's issues is insufficiency of the evidence to support the trial court's judgment. When reviewing the sufficiency of the evidence in a civil case, we will decide whether there is substantial evidence of probative value supporting the trial court's judgment. We neither weigh the evidence nor judge the credibility of witnesses, but consider only the evidence most favorable to the judgment along with all reasonable inferences to be drawn therefrom. Only if there is a lack of evidence or evidence from which a reasonable inference can be drawn on an essential element of the plaintiff's claim will we reverse a trial court. Martin v. Roberts (1984), Ind., 464 N.E.2d 896, 904; F.D. Borkholder Co., Inc. v. Sandock (1980), Ind., 413 N.E.2d 567, 569. The first question is whether there is substantial evidence showing the original flat fee contract was modified.
Because the modification of an existing contract is a contract in itself, all the required elements of a contract must be present. There must be a meeting of the minds and the assents of both parties to make any proposed modification binding and enforceable. Burras v. Canal Constr. and Design Co. (1984), Ind.App., 470 N.E.2d 1362, 1366.
The only discussion of cost of construction had by the parties after they had agreed on the $3,000 flat fee was described by Claycamp as follows:
Q. Okay. At that time, did you have any further discussion about money?
A. Not really, no. He, you know, he would ask me daily probably on the tractor, "How are you running?"
Q. With reference to dollars?
A. Yes, uh huh.
Q. And Mr. Barr in his opening statement indicated that you said that you were running about the right way.
A. Uh huh. That's right.
Q. And do you disagree with that?
A. I answered it "Yes, we are running all right with the fact that the cost per yard", because we were moving more yards. It was made clear that we were moving more yards and I was quite sure that Mr. Gorbett understood that we were moving more yards because we were making the pond bigger and he wanted it bigger and so the yards, you know, when I say, when I answered him, "Yes, we're running", we were actually moving the dirt per yard a little cheaper than the dollar and a half. ...
(R. 123-124). When Claycamp first viewed the property, he told Gorbett "to get anything decent at all he would have to spend at least $3,000.00 which is basically about two thousand yards." (R. 107A). The SCS plan estimated the volume to be removed at 2,012 cubic yards, at an estimated cost of $3,000. (R. 108). After the SCS plan was extant and staked on the property, the parties agreed to the $3,000 flat fee figure to build the pond.
The evidence is insufficient to show a modification of the original contract so as to permit Claycamp to recover more than the agreed flat fee, albeit the excavation was substantially larger than originally laid out.
Viewing the evidence in the light most favorable to the judgment, it is readily apparent Gorbett at all times believed Claycamp was doing the excavation work for the original $3,000 flat fee they had agreed upon, and was attempting to make sure the cost did not exceed that figure. Gorbett asked Claycamp every day "How are we running?" referring to the "dollars" involved. Claycamp replied "Yes, we are running all right with the fact that the cost per yard" of $1.50 was not exceeding his original estimate. 1 These exchanges do not give rise to a reasonable inference Gorbett knew and understood Claycamp was proposing to change their flat fee agreement to a cost-per-yard method of determining the final cost of the project and was agreeing to Claycamp's proposed modification. 2
In Cleveland, etc. R.R. Co. v. Moore (1907), 170 Ind. 328, 82 N.E. 52, 84 N.E. 540, one McNerney contracted with the railroad to grade right-of-way and lay track in a railroad yard and on several miles of the main line at a fixed price per yard of earth moved and at a fixed price per foot for track laid according to the railroad's plans and specifications. These fixed prices were substantially below the market at that time. The railroad made radical changes in the grade later but McNerney continued working for a time thereafter. He finally abandoned the project, and the railroad called upon his surety company to complete the project.
As the surety company carried the project forward, the railroad continued to make extensive changes to the work to be done in the railroad yard. The size of the yard was more than doubled, the grade was drastically altered, and a highway bridge overpass was eliminated, requiring the excavation of a subway underpass for the highway. Notwithstanding these gross deviations from the railroad's plans and specifications, the surety continued with the work until it too decided to abandon the contract. It then sued the railroad in quantum meruit for the extra earth moving it had done over and above the yards the railroad originally had estimated in the contract were to be moved. The judgment for surety in the trial court was reversed on appeal. Our Supreme Court held upon the evidence the surety was charged with knowledge of part of the changes in the original plans, and that knowledge coupled with acquiescence on its part, and reliance on such conduct by the railway brought the claim for extras within the provisions of the contract in fixing the quantum of recovery, namely, the price per yard it fixed.
Likewise, in Rebekah Assembly I.O.O.F. v. Pulse (1910), 47 Ind.App. 466, 92 N.E. 1045, 94 N.E. 779, Pulse contracted to build a new building on the Lodge's land and a connecting covered passageway from there to an old building located on the same premises. The passageway was to be 90 feet in length, but the Lodge had a right to locate the new building. The site selected by the Lodge's building committee required construction of a passage 203 feet in length, more than double the length of the passageway shown in the plans. Pulse successfully sued the Lodge in the lower court under a claim the passageway's additional length was such a radical departure from the original plans his right to compensation should be determined without regard to the original contract's terms. In reversing, the appellate court said:
If it were true that the appellant so radically changed the plans ..., then the appellees were under no obligation to proceed with the work at all, and if they did proceed with it, without objection or question, leaving their employer to understand that they were proceeding in the work under the...
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Gorbett v. Claycamp
...2, 1990. Thomas M. Barr, Nashville, for appellant. Jeffrey J. Lorenzo, Seymour, for appellee. GIVAN, Justice. In an opinion published in 543 N.E.2d 401, the Court of Appeals reversed the trial court's judgment awarding Claycamp an additional $3,000 plus interest at the annual rate of ten pe......