Klimek v. Perisich

• Decision Date: 31 May 1962
• Citation: 371 P.2d 956,231 Or. 71
• Parties: Amelia KLIMEK, Appellant, v. Steve F. PERISICH, Respondent.
• Court: Oregon Supreme Court

Page 956

371 P.2d 956

231 Or. 71

Amelia KLIMEK, Appellant, v. Steve F. PERISICH, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted Feb. 7, 1962.

Decided May 31, 1962.

Mortion A. Winkel and Justin N. Reinhardt, Portland, for appellant. With them on the brief were Reinhardt, Coblens & Stoll, Portland.

F. Leo Smith, Portland, for respondent.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and LUSK, JJ.

PERRY, Justice.

This is an action brought by the plaintiff to recover damages from the defendant for breach of contract to remodel an old dwelling house into a rooming house.

The jury returned a verdict for the plaintiff which was set aside and judgment entered notwithstanding the verdict for the defendant. The plaintiff has appealed.

The sole question presented is, was a contract entered into between the defendant and plaintiff whereby defendant contracted to fully remodel an old residence into a suitable rooming house for plaintiff at a sum not to exceed $10,000?

Both plaintiff and defendant were born in Yugoslavia, and while they now speak and understand English, the record discloses limitations in this regard. The record discloses that plaintiff's husband, who had been a building contractor for some twenty years in this country, died. Subsequent to his death the plaintiff left her home in Newberg and sought employment in Portland.

Through a Portland real estate dealer, who had been instrumental in selling a farm owned by the plaintiff, the plaintiff purchased an old residence in Portland with the thought of remodeling it into a rooming house. This real estate dealer, knowing of her Yugoslavian background, introduced her to the defendant, a builder in Portland. The plaintiff and defendant went to look at the premises, and this conversation took place:

'Q (By Mr. Reinhardt) When you showed this building to Mr. Perisich, what did you ask him about the building?

'A Well, I said, 'Mr. Perisich, I plan to have a rooming house, do you know how many rooms I could have, what I could have from this house?' And he said, 'I couldn't tell you that,' he said, 'but I can do nothing without blueprints. If you get an architect, I take you to architect,' he said, 'and he design and then we see what you can do.' And I said to Mr. Perisich, 'How much that will cost me, what do you think?' And that was the same day, I think. And I said, 'How much will it cost me all together,' and he said, 'Well, it will run around eight, nine, ten thousand dollars, not any more.''

Plaintiff also testified as follows:

'Q Now, did you have any discussion with Mr. Perisich about what he was to do for you about this house?

'A No, I don't because I don't understand a thing of the building. I just give it up to him and he say he try to do it cheapest for me what he can. He say even that will not cost you that much. And he said, 'When you not working, if you find somebody cheaper than I can find, all right, then you contact this person. If I find somebody cheapter, we take this one.'

'Q Did Mr. Perisich at any time ever make any definite agreement with you about----

'MR. SMITH: I object to that.

'THE COURT: That will have to be the result of conversations. There is only two ways an agreement can be formed, by a written contract or what was said. You will have to limit it to that.

'Q (By Mr. Reinhardt) Did Mr. Perisich at any time tell you what he would do for you in connection with this remodeling?

'A No, he never asked me. He just do his work. Then when somebody come around, the siding, he had one and he give him a figure for $35,000, and I look in the paper and I see different people who put on siding and they make for me, I think $2400.

'Q You said $35,000. Do you mean $3500?

'A $3500.'

Blueprints for the remodeling were obtained but no specifications covering materials to be used were ever drafted by anyone.

As to the time the blueprints arrived, plaintiff testified as follows:

'A When he had the blueprints, he told me that the blueprint came, I think it came to him, and he said he got blueprint, and I said, 'Go ahead and you can do this amount what you tell me, eight, nine thousand.' And he says, 'Yes,' and he said, 'Maybe cheaper some.'

'Q And then you told him to go ahead and do the work?

'A Yes.'

The plaintiff introduced numerous checks to various workmen and lumber dealers showing she paid directly some of the workmen and suppliers. She paid defendant carpenters wages, as she did two other carpenters who worked with him on an hourly basis. With reference to one of the workmen plaintiff herself hired, she testified as follows:

'Q (By Mr. Reinhardt) How did Mr. Washington happen to do work at the place, Mrs. Klimek?

'A He come and tore the plaster off.

'Q Who asked him to come and tear the plaster off?

'A I asked somebody, I could not remember who it was, and they sent him to my place and he came one morning, and he said, 'You was the lady who need the labor to tear the plaster off?' And I said, 'Yes,' and I asked him how much will he charge and he said he going to charge me $600, but then he work just a short time, I think two days, and quit, and then I had another one because Mr. Perisich, he said he get a guy who do that kind of work for $2400, and after all I figure out how I hire, it comes altogether at $900, tear off and take away the plaster.

'Q Did you have any discussion with Mr. Perisich about the removal of the plaster before Mr. Washington----

'A Yes.

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* * *

'Q (By Mr. Reinhardt) What was that conversation that you had with Mr. Perisich?

'A Well, he told me if I could find somebody to do it cheaper than he does, go ahead and take it.

'Q Do what cheaper than he can?

'A Any kind of work, anyone hire.

'Q Well, how did you know that plaster needed to be taken off of this building? Did anybody tell you?

'A Mr. Perisich, yes, that is what we spoken first.

'Q Well now, what was the conversation between you and Mr. Perisich about taking plaster off?

'A Well, that is the way it start, and I said, 'Well, who is going to do that?' He said, 'I have got two guys, they going to do that, they can do that work for $2400,' and I said, 'That is quiet a bit of money, I think. Can I look for somebody.' I said, 'I don't have nothing to do, I look for somebody, if I can get it cheaper,' and that is the way it starts. And after all, I still pay too much money for that.

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'Q But did you discuss each check with him before you issued it or not?

'A No, from the start he tell me if I get anybody cheaper than what he could hire, if anybody make a lower price, all right, I should take it.'

Again, as to the agreement, plaintiff testified as follows:

'Q After you started the agreement, what was the agreement?

'A Well, he said he going to build this house for me from eight, nine, to ten thousand most, it doesn't cost any more.

'Q Yes.

'A And he said, 'No, not even that much, because I am going to do the work for you as cheap as plain labor, I won't charge you any more.' And he says, 'If you know somebody, I can hire people, but if you know somebody that can do it cheaper and just as good work like I know, it is all right, you privileged to hire that fellow.''

As to the bills, she stated:

'A Mr. Perisich, when bills come, he give it to me.'

The bills for material came direct to plaintiff, not through the defendant and she paid the defendant his wages weekly.

The plaintiff also testified that after she discovered what remodeling of the building was costing she asked the defendant where she might obtain sufficient moneys to complete the project, and he gave her the names of several of his friends, but she was unsuccessful in this attempt. She then abandoned the project.

Again, as to the purported contract, the plaintiff testified:

'Q All right. Did he give you a statement on or about May 10th, 1957?

'A Not before and not after. I don't have any statement. He says he is going to do that building, complete finished, he agreed complete finish, and I don't ask for statement. Before we start on the building, I said, 'Mr. Perisich, you know I like if you could give me a contract or some paper writing down that you will do for that much,' and he says, 'Well, that is an old house, I couldn't tell exactly how much it will cost me, but'----

'Q (Interposing) Just a minute.

'MR. REINHARDT: Let her finish the answer.

'Q (By Mr. Smith) Are you finished?

'A And he said, 'It will cost you more by anybody else because I do for you cheapest what I do.'

'Q Now, you just said a minute ago that you asked him for a written contract but he told you it was an old house and he didn't know how much it would cost?

'A Correct.

'Q So, Mrs. Klimek, before he started to work, he told you he did not know how much it would cost?

'A Well, he said positively it will not pass the ten thousand.'

The plaintiff also testified no arrangements were made between the parties as to who would do the required plumbing, heating or electrical wiring of the structure, but as these items became necessary they would each try to have these items contracted for at the most reasonable price. Any discounts for materials the defendant could receive by reason of his vocation were passed on to plaintiff by defendant. The plaintiff also introduced into evidence an estimate of the cost of remodeling the house which defendant furnished to plaintiff before entering into work upon the house, which, including new furnace, labor, materials, etc., was of the sum of $18,284.00.

We have set forth only the evidence of the plaintiff, as this is an action at law, and if there is substantial evidence of the formation of a contract, as sued upon, the finding of the jury must be sustained. Clemens v. Smith, 170 Or. 400, 402, 134 P.2d 424.

The intention of the parties to enter into a contract and the construction of their language to express their intentions and agreement must be construed in the light of the circumstances which then existed. Erickson v. Grande...