Kennedy v. Moutray, 11430

• Docket Nº: No. 11430
• Citation: 572 P.2d 933, 1977 NMSC 109, 91 N.M. 205
• Case Date: December 28, 1977
• Court: Supreme Court of New Mexico

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572 P.2d 933 91 N.M. 205 Rex KENNEDY, Plaintiff-Appellant,
v.
Hugh M. MOUTRAY and Willo D. Moutray, Defendants-Appellees. No. 11430. Supreme Court of New Mexico. Dec. 28, 1977.

[91 NM 205] Matkins & Martin, Jerome D. Matkins, Carlsbad, for plaintiff-appellant.

McCormick & Forbes, Roger E. Yarbro, Carlsbad, for defendants-appellees.

OPINION

FEDERICI, Justice.

This suit was brought in the District Court of Eddy County to recover sums owing to the plaintiff (appellant) by the defendants (appellees) for work performed on the appellees' residence. The cause was tried to the court without a jury and judgment was entered in favor of the appellant in the sum of $8,148.19, plus sales tax and attorneys fees.

The trial of this cause proceeded as one for the collection of an open account and foreclosure of a claim of lien filed by the appellant for services performed on an addition to and improvements to the residence of appellees. The trial court held that the total sum due the appellant for his services as a contractor was $18,000 plus 10%. Appellant maintains that the contract was of the cost plus variety, and that statements rendered to the appellees indicated that the actual cost of construction was in excess of $18,000 and that the evidence supports his contention.

Appellees contend that the testimony was disputed as to what the agreement was between the parties, and that the trial court found that the appellees and their architect relied on the disputed statements of appellant and awarded the contract to him on a cost plus 10% basis with a guaranteed maximum of $18,000 plus 10% profit, plus 4% New Mexico sales tax. Appellees maintain that this finding by the trial court is supported by substantial evidence in the record.

The appellant also contends that the trial court erred in finding that the appellees did not authorize including in "cost" items of overhead and supervisory time. Appellant contends that the evidence shows that the appellees paid the first three statements submitted to them by appellant, which included a 9% overhead charge, and that this payment indicates acquiescence in the overhead charge. However, the trial court found that appellees paid these first statements under protest as to the overhead charge, and that appellant agreed to adjust

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[91 NM 206] the billing downward in the future. Appellees argue that this finding by the trial court is supported by the evidence.

The final point raised by appellant is that the trial court erred in its award of interest on the damages awarded. Appellant contends that § 50-6-3, N.M.S.A.1953 (Repl.1962) provides that interest is allowed upon open account at 6% per annum after six months from the date of the last item. Appellant states that the trial court awarded 6% interest from the date of judgment, while it should have awarded the interest figure from six months following the due dates of statements rendered appellees by appellant.

Appellees contend that generally interest is an element of damages, and, as such, is left to the sound...