Koser v. Bohemian Breweries, Inc., 7424

• Decision Date: 25 January 1949
• Docket Number: 7424
• Citation: 69 Idaho 33,202 P.2d 398
• Parties: KOSER v. BOHEMIAN BREWERIES, Inc
• Court: Idaho Supreme Court

202 P.2d 398

69 Idaho 33

KOSER v. BOHEMIAN BREWERIES, Inc

No. 7424

Supreme Court of Idaho

January 25, 1949

Appeal from District Court, Third Judicial District, Ada County Charles E. Winstead, Judge.

Affirmed.

Harry S. Kessler, of Boise, for appellant.

It is the duty of trial court to make findings upon each and every material issue upon which proof is offered, and its failure to do so is ground for reversal. Cheesbrough v Jensen, 62 Idaho 255, 257, 109 P.2d 889, and cases cited.

Where evidence as to oral modification of written contract was undisputed, the trial court was required to decide as a matter of law, whether the contract was modified. Smith v. Washburn-Wilson Seed Co., 54 Idaho 659, 34 P.2d 969; Rawleigh Co. v. Van Duyn, 32 Idaho 767, 188 P. 945.

Where the trial judge's decision violates the law, or is not supported by the evidence, judgment should be reversed. Clark v. Clark, 58 Idaho 37, at page 41, 69 P.2d 980; North Robinson Dean Co. v. Strong, 25 Idaho 721, 139 P. 847.

C Stanley Skiles, of Boise, for respondent.

By the failure of appellant to object to, or offer amendments to, the findings of fact and conclusions in the lower court, they are deemed adopted by appellant. Rule XIX, Rules of the District Court, Third Judicial District.

It is not necessary for the trial Court to make findings of fact which are unnecessary in view of other findings made by the Court. 53 Am.Juris., Trial, Sec. 1134.

It is not error to fail to make specific findings on issues set up by one party which are necessarily decided against him by findings made in favor of his adversary. Woodhead v. Wilkinson, 181 Cal. 599, 185 P. 851, 10 A.L.R. 291; New Blue Point Mining Co. v. Weissbein, 198 Cal. 261, 244 P. 325, 45 A.L.R. 781.

Findings of the trial Court on questions of fact have the force and effect of a verdict of a jury, and where there is a substantial conflict in the testimony the findings of the trial Court will not be disturbed. Eastwood v. Schultz, 42 Idaho 118, 243 P. 653; Stephens v. Stephens, 53 Idaho 427, 24 P.2d 52; First National Bank v. Cruickshank, 38 Idaho 789, 225 P. 142.

Porter, Justice. Holden, C. J., Givens and Hyatt, JJ., and Taylor, District Judge, concur.

OPINION

Porter, Justice.

During the month of November, 1946, the appellant and respondent entered into negotiations for the making of certain alterations and improvements by the appellant upon the property of the respondent. The respondent was acting by its Boise Manager, Steve T. Collins. The work to be done consisted principally of the installation of a Kewanee Hi-Test boiler in the building of the respondent in Boise, Idaho, and the erection of a steel smoke stack. The appellant contends that he was to purchase the necessary materials at wholesale prices and employ the necessary labor; was to supervise the installations; and was to furnish a helper and some tools and machinery. That it was agreed that he was to be paid for his services on a twenty-twenty basis; that is, he was to receive twenty per cent of all invoices for materials, and at the conclusion of the work, was to receive an additional twenty per cent of the entire cost of the contract to cover his labor, his helper, and the use of his machinery.

Some preliminary work was done by the appellant. Later, the engineer of the respondent, a Mr. Muzatko, from Spokane, being in Boise, wanted a contract showing what the work would cost. The appellant was requested to furnish an estimate. On November 26, 1946, the appellant gave the respondent an estimate wherein he estimated the total cost of the work at Five Thousand Four Hundred and Forty-five ($ 5,445.00) Dollars. On November 27, 1946, appellant and respondent entered into a written contract whereby the appellant agreed to make the installations in questions at a total cost of not exceeding Five Thousand Five Hundred ($ 5,500.00) Dollars; this sum to include his compensation in full. There was also a provision in the contract to the effect that if any savings could be made by the purchase of materials below the estimated cost, then respondent was to have the benefit of such savings.

There were some changes made in the proposed installations just prior to the signing of the contract and some changes made thereafter. The appellant contends that he objected to these changes at the time the contract was signed and on occasions thereafter. That he was assured by the manager of the respondent that the contract would be disregarded and appellant paid on the basis of the alleged original or oral agreement, that is, on the twenty-twenty basis. Apparently, however, the additional expense of all changes was paid by the respondent and not charged to the contract of appellant. During the progress of the work the respondent paid to the plaintiff the invoices presented by appellant together with an additional twenty per cent thereon. When the work was completed the appellant sought to collect an additional twenty per cent on the cost of the completed job; and the respondent contended that the appellant had already been overpaid. No settlement having been reached, the appellant filed a claim of lien for the sum of One Thousand Eighty-eight and 15/100 ($ 1,088.15) Dollars on the 13th day of May, 1947, and on the same day, commenced his action to foreclose such lien.

The appellant predicated his complaint upon an alleged verbal contract entered into on or about November 20, 1946. The respondent by its answer alleged the work was done under the written contract entered into on November 27, 1946. The answer further alleged that the appellant had been overpaid; and by way of counterclaim the respondent sought to recover the overpayment and damages for alleged faulty and incomplete installations. Trial was had before the Court sitting without a jury. The trial court entered judgment that the plaintiff had been fully paid, that the claim of lien be discharged and that the defendant have judgment for costs of suit. From such judgment appellant prosecutes this appeal.

The first assignment of error by appellant is as follows:

"The Court erred in failing to make a finding upon...