Lautenbach v. Meredith

• Decision Date: 08 February 1949
• Docket Number: 47399.
• Citation: 35 N.W.2d 870,240 Iowa 166
• Parties: LAUTENBACH v. MEREDITH et al.
• Court: Iowa Supreme Court

35 N.W.2d 870

240 Iowa 166

LAUTENBACH v. MEREDITH et al.

No. 47399.

Supreme Court of Iowa

February 8, 1949

Siegers & Bedell, of Newton, for appellants.

Van Zante & Klyn, of Pelle, for appellee.

GARFIELD Justice.

Plaintiff as principal contractor brings this action in equity under chapter 572, Code 1946, to enforce a mechanic's lien for material and labor furnished by him in the fall of 1947 in the construction of a new house on defendants' farm. Plaintiff's amended petition alleges he built the house under an oral contract to furnish all material, labor and supervision for which defendants agreed to pay on a basis of cost of all items furnished plus 10 per cent for supervision and there is a balance owing of $5539.

Defendants' answer states that plaintiff orally agreed to build the house for $7000; he failed to furnish certain lineleum and an outside lamp and to erect and paint a fence and to do some other painting, all to defendants' damage in the sum of $140.87; defendants have paid plaintiff $6338.19 (plaintiff admits this); they have offered and now offer to pay plaintiff $520.94, the balance of the $7000.

The trial court's findings and decree seem to have been somewhat carelessly prepared and are not entirely clear. They allow plaintiff $4529.55 apparently as the balance due for cost of material and labor furnished. Plaintiff's claim for the 10 per cent was denied for the reason he charged $1.65 an hour for his time on the work. It is admitted here the judgment should be reduced $70.12 because the court incorrectly computed the amount due. Only defendants have appealed.

It is true as defendants argue, that since plaintiff has pleaded an express oral contract he cannot recover on an implied contract or upon quantum meruit. Maasdam v. Estate of Maasdam, 237 Iowa 877, 884, 24 N.W.2d 316, 320, and citations; 17 C.J.S., Contracts, § 569a.

There cannot be an express contract and an implied one relating to the same subject matter and covering all its terms. In such case the express contract would supersede the implied one. Maasdam v. Estate of Maasdam, supra, 237 Iowa 877, 887, 24 N.W.2d 316, 321; 17 C.J.S., Contracts, § 5; 12 Am.Jur., Contracts section 7. But there may be an implied contract on a point not covered by an express one. Maasdam v. Estate of Maasdam supra, and citations.

Plaintiff had the burden to prove the contract declared upon by him. Economy Hog & Cattle Powder Co. v. Honett, 222 Iowa 894 900, 270 N.W. 842; Olson v. Shuler, 203 Iowa 518, 521, 210 N.W. 453; 17 C.J.S., Contracts, § 579.

In argument each side has attempted to construe the findings of the trial court. Defendants contend and plaintiff denies they indicate recovery was allowed on the theory of implied contract. We shall not undertake to settle this difference of opinion. It is our duty to consider and determine the case anew. If the trial court reached the right result any error in its reasoning or findings is deemed not prejudicial and is of no avail to defendants here. Roth v. Headlee, 238 Iowa 1340, 1348, 29 N.W.2d 923, 927, and citations.

The most important question in the case is one of fact, whether plaintiff agreed to build the house on a basis of cost plus 10 per cent as contended by him or at a fixed price of $7000 as claimed by defendants.

Plaintiff, a carpenter at Pella for about 56 years, learned through a lumber dealer at Prairie City that defendants (two brothers) wanted a house built on their farm 18 1/2 miles from Pella. Defendants met plaintiff and one Dingeman, who did excavating and cement work for plaintiff, at the farm on an evening in July, 1947. Defendant Dr. Meredith, who seems to have done most of the talking for defendants, brought with him a house plan obtained from the magazine Better Homes and Gardens and requested plaintiff to sketch some desired changes in the floor plan. This plaintiff agreed to do. Defendants say plaintiff was also asked at this meeting to figure the cost of the house.

Plaintiff took the plans with him and made the necessary changes in the floor plan. Defendants, plaintiff and Dingeman met again at the farm a few evenings later. The changes in the floor plan were satisfactory to defendants. Plaintiff, corroborated in the main by Dingeman, says Dr. Meredith asked plaintiff for an estimate as to the cost of the house and he replied he could not make one 'the way prices were going up,' he 'wouldn't contract it at all,' he never did contract a house, when pressed by Dr. Meredith for a rough estimate he told the doctor it would cost 'all of $7000,' he would build the house 'just like Peters' plus ten per cent. That is customary, that is the way we have been building all of them.' Dr. Meredith told plaintiff to go ahead. Plaintiff had recently built a house for Peters on a basis of cost plus 10 per cent.

Defendants' version is that at the first meeting Dr. Meredith asked plaintiff to figure the cost of the house, at the second meeting (outdoors) plaintiff said he would build it for $7000, Dr. Meredith then went in the old house (which was to be replaced) and informed defendants' tenant and wife and the doctor's wife plaintiff would build the new house for $7000, they all then went outside and discussed with plaintiff and Dingeman as to whether the floors would be oak or pine, th kind of fireplace, the type of plaster, the make of furnace, the type of insulation, the plumbing, the septic tank and perhaps other items. The doctor then asked whether the figure $7000 included all these things, plaintiff replied it would and defendants said to go ahead.

The tenant and wife and the doctor's wife all testify they heard plaintiff say the $7000 figure would include the items discussed. The tenant and wife (who were to occupy the new home) say they heard no discussion of building on a basis of cost or cost plus 10 per cent. Defendants testify there was no such discussion. Dr. Meredith admits that at the second meeting plaintiff said he would build the house 'just like the Peters house' but says this followed the doctor's statement they wanted it well built and he assumed plaintiff meant it would be a well built house.

Notwithstanding the greater number of witnesses who testify for defendants we are inclined to accept plaintiff's version of the contract. The preponderance of the evidence does not depend on which side has the greater number of witnesses, especially where as here they are interested ones, although the number of witnesses is a matter to be considered. 32 C.J.S., Evidence, § 1022c; 20 Am.Jur., Evidence, section 1190; Garretson v. Harlan, 218 Iowa 1049, 1058, 256 N.W. 749; Brown v. Blanchard, Iowa, 35 N.W.2d 858, filed this date. We regard plaintiff's version, under the circumstances here, much more probable.

It is a fact of common and general knowledge of which we may take judicial notice that construction costs were not stable but increased frequently during World War II and the period in controversy here. It seems probable in view of this fact that a contractor of plaintiff's knowledge and experience would decline to contract this house at a set figure, especially when it is shown beyond dispute it was customary to build houses on a 'cost plus' basis and that is the way plaintiff had built some 15 houses in the two years preceding the trial in June, 1948.

Judicial notice has been taken that the arrangement of paying cost plus a percentage as a contract price for a completed job is growing in favor and is becoming a common plan adopted by contractors instead of a lump-sum payment. Economy Pumps v. F. W. Woolworth Co., 220 N.C. 499, 17 S.E.2d 639, 641, and citation. Also that the business of building houses for an agreed price is highly speculative. Randles v. Nickum & Kelly Sand & Gravel Co., 169 Ore. 284, 127 P.2d 347, 349. See also as having some bearing Ozark Black Marble Co. v. Stephenson, 208 Ark. 338, 186 S.W.2d 145, 146.

A duplicate of the Better Homes and Gardens plans furnished plaintiff are before us. The contain no specifications in the accepted sense and no such specifications were furnished plaintiff. There is nothing in the plans, for example, to show the grades of lumber to be used or many other details as to materials or methods of construction. The matters defendants say were discussed at the second meeting are only a small part of what would be embraced in specifications. According to defendants even these items were not discussed until after plaintiff had said he would build...