Marshall v. Ahrendt

• Decision Date: 14 August 1975
• Docket Number: No. 3--474A62,3--474A62
• Citation: 165 Ind.App. 359,332 N.E.2d 223
• Parties: Eleanor MARSHALL, Defendant-Appellant, v. Louis T. AHRENDT, d/b/a Louis Ahrendt Construction, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 223

332 N.E.2d 223

165 Ind.App. 359

Eleanor MARSHALL, Defendant-Appellant, v. Louis T. AHRENDT, d/b/a Louis Ahrendt Construction Plaintiff-Appellee.

No. 3--474A62.

Court of Appeals of Indiana, Third District.

Aug. 14, 1975.

Gordon A. Etzler, John E. Hughes, Chester, Clifford, Hoeppner & Houran, Valparaiso, for appellant.

Robert J. Walker, Chesterton, for appellee.

HOFFMAN, Judge.

Plaintiff-appellee Louis T. Ahrendt, d/b/a Louis Ahrendt Construction (Ahrendt) commenced this action in the trial court to foreclose a mechanic's lien claimed by him for certain construction work performed upon real estate owned by defendant-appellant Eleanor Marshall (Marshall). Marshall then counterclaimed for damages which, she asserted, resulted in part from Ahrendt's breach of a construction contract between them.

Trial was had before the court without the intervention of a jury. The trial court entered judgment in favor of Ahrendt on his complaint, and disallowed Marshall's counterclaim. Marshall's motion to correct errors was overruled, and this appeal was perfected.

On appeal, Marshall first questions a finding by the trial court that 'no oral contract' existed between Ahrendt and herself. Such finding may not be overturned on appeal unless this court is satisfied that it is clearly erroneous. See: Hacker v. Dan Young Chevrolet, Inc. (1973), Ind.App., 304 N.E.2d 552; Ind. Rules of Procedure, Trial Rule 52(A).

In the case at bar, the parties made the following stipulation in the pretrial order:

'That Eleanor Marshall and Louis T. Ahrendt d/b/a Louis Ahrendt Construction, entered into a verbal contract on or about October 6, 1971, to construct an addition to the house and a garage building on the premises.'

The court recognized the stipulation as demonstrating that the parties believed they had some type of contractual arrangement, but found that in fact there was no (express) contract ultimately formed.

While both the stipulation and the finding might have been more artfully drawn, they are not necessarily inconsistent. The finding spoke to the ultimate issue, while the stipulation referred to October 6, 1971. Admittedly, many changes occurred after October 6, and if they were sufficient to destroy the original 'agreement' or demonstrate that in truth there was no mutuality of assent on the essential elements of a contract, then the court's finding was not incorrect. Findings c, d, e and f made by the court, and supported by the evidence as hereinafter discussed, disclose that the dealings between the parties were insufficient to establish the express contract asserted by Marshall.

Appellant Marshall further contends that the judgment of the trial court is contrary to law in that it failed to recognize the following provisions as terms of the contract here at issue: That the work was to be performed within 30 days; that waivers of lien were to be presented by Ahrendt before final payment; and that work as detailed in plans prepared by Ahrendt was to be done for a firm price of $12,750.

When considering an assertion on appeal that a civil judgment is contrary to law, it must be remembered that it is only where the evidence is without conflict and leads to only one conclusion, and the trial court has reached a contrary conclusion, that such judgment will be disturbed as contrary to law. Stated differently, the test is whether it affirmatively appears that reasonable men could not have arrived at the same conclusion as did the trial court. Dyer Construction Co., Inc. v. Ellas Const. Co., Inc. (1972), 153 Ind.App. 304, 287 N.E.2d 262.

The findings of the trial court, in pertinent part, were:

'(c) The nature of the work was unclear;

'(d) The time the work was to be consumated (sic) was not clear;

'(e) There were many changes as the work progressed;

'(f) There is no clear price involved; * * *.'

The evidence and reasonable inferences flowing therefrom considered by the trial court in making these findings are conflicting. It was the duty of the trial court sitting as the trier of fact to resolve such conflicts. There is probative evidence to support each of such findings, and therefore they may not be overturned by this court. Dyer Construction Co., Inc. v. Ellas Const. Co. Inc., supra.

It is the rule in Indiana that a contract must be reasonably definite and certain to be valid and enforceable. International Shoe Co. v. Lacy (1944), 114 Ind.App. 641, 53 N.E.2d 636. As evidenced by the findings of the trial court quoted hereinabove, nearly every essential term of the contract here at issue was indefinite and uncertain. The trial court properly refused to enforce any of the terms of such contract, and properly awarded equitable recovery to Ahrendt for the reasonable value of the labor and materials furnished. Dyer Construction Co. Inc. v. Ellas Const. Co., Inc., supra; Coleman v. Chapman (1966), 139 Ind.App. 385, 391, 220 N.E.2d 285, 289; International Shoe Co. v. Lacy, supra.

Appellant also asserts that the trial court erred in considering an answer to interrogatories which were not introduced in evidence. The consideration of such answer by the trial court is evidenced by a reference thereto in a finding made by the trial court.

Although the trial court erroneously considered such interrogatory answer, such response concerned only the...