McCabe v. R.A. Manning Const. Co., Inc., 83-55

• Decision Date: 02 December 1983
• Docket Number: No. 83-55,83-55
• Citation: 674 P.2d 699
• Parties: Fred McCABE, Appellant (Defendant), v. R.A. MANNING CONSTRUCTION CO., INC., Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 699

674 P.2d 699

Fred McCABE, Appellant (Defendant), v. R.A. MANNING CONSTRUCTION CO., INC., Appellee (Plaintiff).

No. 83-55.

Supreme Court of Wyoming.

Dec. 2, 1983.

William L. Miller and Holly Brown of Central Wyoming Law Associates, P.C., Riverton, for appellant; oral argument by Miller.

Lawrence B. Hartnett of Hartnett & Moyer, Jackson, for appellee.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN, and CARDINE, JJ.

CARDINE, Justice.

This was an action to recover the balance due upon an oral contract for the construction of the Pioneer Press Building at Jackson, Wyoming. The jury returned its verdict in favor of plaintiff, appellee. Defendant, appellant, appeals from the judgment entered upon that verdict.

We will affirm.

The issues for determination, as stated by appellant, are the following:

"1. The trial court erred in refusing to admit into evidence the second page of the architect Hocker's notes of the November 26, 1980 meeting.

"2. The trial court erred in its comments regarding the testimony of Mr. Hocker.

"3. The trial court erred in refusing to allow appellant to cross examine Bob Manning, Sr. regarding problems with the Black house."

FACTS

Pioneer Press is a commercial printing business owned by appellant and located in Jackson Hole, Wyoming. The business received a thirty-day notice to vacate its premises and thereafter moved into a building housing the Jackson Hole Guide, a newspaper also owned by appellant. There was not sufficient space for both businesses; and appellant contacted appellee about April 6 or 7, 1980, concerning the construction of a building to house the Pioneer Press printing business. At that time, appellant had neither plans nor specifications for construction of the proposed building. He employed an architect to assist him and discussed with appellee, in a preliminary way, the construction of either a metal or concrete block, single story, 50' by 100' commercial building without basement. Appellant and appellee agreed to proceed with construction of the proposed building, without plans or specifications, upon a cost-plus oral contract under which appellee would be paid his cost of construction plus 5% for overhead and 10% profit. There is no dispute that this is the oral agreement entered into between the parties.

Construction was begun by appellee on May 23, 1980. By that time the architect had prepared a foundation plan with basement of sufficient strength and size to carry a second floor on the building if that were decided upon.

Appellee first gave an estimate of the cost of constructing a single story, 5,000 square foot concrete block building. Then, on June 29, 1980, he was asked to estimate the additional cost of adding a second floor to the building with six apartments, and he estimated that cost at $161,422.

As construction progressed, appellant's architect prepared drawings and delivered them to appellee. On August 7, 1980, appellee was asked to give an estimate of the cost of construction of the total building, still without final drawings being completed. He then gave an estimate of $440,037.71.

Construction of the building proceeded and, on November 7, 1980, appellant requested that appellee prepare another estimate of the cost of completion advising that he wished the entire building, with the exception of the apartment to be occupied by appellant, to be completed by the last day of January, 1981.

Appellee prepared the estimate pursuant to request, and the parties met on November 26, 1980. Present at the meeting were appellant, appellant's architect, and appellee. The parties discussed the progress being made, the proposed completion date, extra expense and cost resulting from changes as construction progressed, and the final cost of the project. Appellant asked appellee if he had arrived at a price for completion of the building. Appellee stated he had made an estimate for the cost of completion of $493,025.69. Appellant states that he asked for a "final" figure, and this is the figure given him by appellee. Appellee denies it was a "final" figure.

Appellant wrote the figure, $493,025.69, on a piece of paper, pushed it across the table and asked appellee to sign it. Appellee signed the paper and gave it back to appellant. This document, designated Exhibit C, was offered and received into evidence. When received in evidence, the figure, $493,025.69, was written twice, and there appeared thereon the word "final." Appellee testified the word "final" was not on the paper when he signed it. Appellant testified it contained the word "final" and that because the figure, $493,025.69, was smudged, he had written it again on the piece of paper marked Exhibit C Appellant contends that the effect of signing the paper and the meeting of the parties on November 26, was to change the oral agreement of the parties from cost-plus to a firm or fixed-bid contract. Appellee contends that nothing was ever said about changing the agreement from cost-plus to a fixed price. He testified the change would have been impossible without stopping the job, getting all the bills together, determining what had been paid and what had not been paid, and getting fixed firm bids from each of the subcontractors still to perform work. That was not done, nor was it requested.

Appellee continued work on the building and continued submitting bills in cost-plus form as he had done before, with the bills submitted in December being paid in full. When he submitted his bills on January 5, he was told by the bookkeeper who made payments that she, at that time, was unable to pay more than the $493,025.69. On January 5, appellant was still in the town of Jackson and had told his architect that he did not want the job stopped. The architect knew that appellant was contending that the agreement had been changed to a fixed-price contract. He never informed appellee of this contention. The bookkeeper never advised appellee that he would be paid no more than $493,025.69, or that the agreement had been changed. Appellant never called appellee and advised him of this, although appellant was in Jackson through the 7th of January before leaving on vacation for the Cayman Islands.

Appellee continued working on the job under the assumption that the agreement was as it had been initially. He completed the job as agreed at the end of January, 1981. Appellant returned from his vacation in March 1981 and thereafter, during April 1981, the parties met concerning the claimed balance due. Appellant, then for the first time, advised appellee that he would pay no more than the $493,025.69. Appellee became irate, left the meeting, and this lawsuit ensued.

Appellant's architect testified that it was not unusual for a general contractor to submit estimates during construction with a cost-plus contract. The estimates permit the owner to know the approximate cost of the building as work is progressing and determine whether to continue, stop work, or make changes to stay within his plans and budget. The architect further testified that it would be unusual to change an agreement from cost-plus to a fixed bid, and that he knew of it happening only one other time in his experience. He said there were problems in deciding changes in the building as work progressed. Plans were drawn and materials and specifications determined during construction, the last set of drawings being given to appellee on November 10, 1980. The job was termed "fast-track construction" which means there was some urgency about getting started and getting the building completed. Appellant had lost his lease for Pioneer Press, had moved into cramped quarters, and it was desirable that the new building for the commercial printing business be completed as soon as possible. This kind of construction is more expensive than construction which can be bid after the completion of plans and specifications for the structure to be built.

The Pioneer Press building, as finally completed, was an 11,000 square foot building with a full basement, a first floor occupied by the printing business, and a second floor containing six apartments.

Appellant has no complaint concerning the quality of construction, timeliness of completion, or the performance of appellee. He simply contends that the oral cost-plus arrangement was, by agreement of the parties, changed to a "fixed price" agreement and he should pay no more than that agreed fixed price ($493,025.69). The jury found against appellant upon this contention, and he claims that this finding resulted from error in the trial as specified in the issues he presents in this appeal.

I

REFUSAL TO ADMIT ARCHITECT'S NOTES.

Pretrial conference in this case was held June 8, 1982. Among other exhibits appellant produced at the pretrial conference two pages of the architect's notes which were marked "Defendant's Exhibit B." These notes were prepared by the architect at or immediately after the meeting of the parties on November 26, 1980. The court's written Order After Pretrial Conference stated: "Defendant's [appellant's] exhibits b [and other exhibits] are all received into evidence without objection." This order was filed and served upon all counsel of record September 7, 1982.

At the trial, during the testimony of appellant's architect upon direct examination, the following occurred with respect to Exhibit B.

Appellant's counsel: "Now, Mr. Hocker, I will hand you Defendant's Exhibit B which has already been admitted into evidence * * *."

Appellee's counsel then approached the bench and, out of the hearing of the jury, stated:

"My notes from the pretrial conference don't show Exhibit B as being admitted. He is laying a foundation. He just said to the jury they had already been admitted into evidence."

The court then stated,

"That's an error on my part * * *,"

The court further stated,

"The problem with this exhibit is this page [referring to page two of Exhibit B] was not made contemporaneously with the...