MICHELSON v. HOUSE

• Decision Date: 08 June 1950
• Docket Number: No. 5222,5222
• Citation: 218 P.2d 861,54 N.M. 197
• Parties: MICHELSON v. HOUSE et al. HOUSE v. MICHELSON et al.
• Court: New Mexico Supreme Court

54 N.M. 197

218 P.2d 861

MICHELSON

v.HOUSE et al.

HOUSE

v.MICHELSON et al.

No. 5222.

Supreme Court of New Mexico.

Feb. 20, 1950.

Rehearing Denied April 5, 1950.

Second Motion for Rehearing Denied June 8, 1950.

[218 P.2d 862, 54 N.M. 199]

Owen B. Marron and Alfred H. McRae, Albuquerque, for appellee and cross-appellant.

Keleher & McLeod, Albuquerque, David R. Gallagher, Albuquerque, for appellant.

COMPTON, Justice.

Appellee seeks a declaratory judgment as to certain alleged disputes resulting from conflicting interpretations of a building contract, whereby appellant, on a cost-plus basis, constructed Bell Indian Trading Post at a cost of $244,256.08, for an accounting and particularly that appellant's fee be determined at $12,600.00. The contract contained the following provision: 'In consideration of the performance of the Contract, the owner agrees to pay the Contractor, in current funds, as compensation of his services hereunder nine percent of the cost of the work, provided the work costs in excess of $100,000.00 and 10% in case the amount of work done is less than $100,000.00 which shall be paid as follows: Six percent on monthly statements as per certificates issued by the Architect. In no case shall the cost of the work exceed the sum of $140,000.00 the remainder of the fee shall be paid on certificate of the Architect and on completion of the Work.'

Appellant charges that by a mutual consent there was a radical departure from the contract and the such extra work entitled him to fees on the total cost of the building. By counterclaim he asserts a lien for $4,845.30 as fees for the extrawork, and prays judgment foreclosing the lien, for costs and attorney fees. The trial court granted summary judgment holding the lien was unenforceable. In the adjustment of accounts the court allowed a credit of $520.90 as reimbursement on equipment owned and used by appellant in the construction.

The jury returned a verdict for appellant for $21,982.86, 9% of the total cost. Upon appellee's motion the verdict was set aside and judgment rendered for appellee for $4,419.61, fees previously collected by appellant for extra work.

To review the action of the court both parties appeal.

Appellant assigns as error the ruling (a) that the lien is unenforceable, and (b) in setting aside the verdict. Appellee assigns as error the ruling allowing reimbursement for use of personally owned equipment.

The installation of heating, plumbing, electrical work, machinery and equipment was to have been done by separate contract, and supervised by appellant. The idea of separate contracts, however, was mutually abandoned, and appellant through subcontractors did the extra work at an additional cost approximating $100,000.00. The extras necessitated additional time and work, especially bookkeeping, as shown by voluminous amount of exhibits, the negotiating and handling of subcontracts, and the disbursement of funds, duties obviously not contemplated by the contract. The payments for extras were made on itemized monthly statements, each plainly appellant's fees for over-head and profits, submitted to and approved by appellee's architect after which they were paid by appellee. Moreover, controversy having arisen between the owner, appellee herein, and the subcontractor for the plumbing work and negotiations between him and the owner becoming deadlocked, the appellant, in order to adjust the matter andexpedite to work, from his own funds, paid out $1,000.00. This act on his part strongly suggests mutual understanding at that time that appellant had a financial interest in the extra work over and above mere supervision.

We conclude there was evidence for the jury. The parties could substitute a new contract by conduct as well as by expressed stipulations. Entertaining this view, it follows that the court erred in sustaining the motion for judgment notwithstanding the verdict.

In the consideration of a motion for judgment non obstante veredicto, the evidence favorable to the successful parties together with the inferences that may reasonably be drawn therefrom are to be accepted as true. To grant the motion the court should be able to say that there is neither evidence nor inference from which the jury could have arrived at its verdict. The author, at 30 Am.Jur., Judgments,Section 57, states the rule: '* * * In determining whether to render a judgment non obstante veredicto, the court is not justified in trespassing on the province of a jury to be the judge of all questions of fact in the case, and the party favored by the verdict is entitled to have the testimony read in the light most advantageous to him, and to be given the benefit of every inference of fact fairly deducible therefrom.'

The doctrine announced has been followed generally. Thus, in Volland v. McGee, 236 Wis. 358, 294 N.W. 497, 499, 295 N.W. 635, the court said:

'A motion for judgment notwithstanding the verdict admits for the purposes of the motion the existence of the facts found by the jury and asserts that taking the verdict as it stands judgment should go the other way. It does not challenge the sufficiency of the evidence to support the findings.'

And in Turner v. Lischner, 52 Cal.App.2d 273, 126 P.2d 156, 159, it was said: 'Appellants' final contention, that the trial court erred in denying their motions for a nonsuit, directed verdict and judgment notwithstanding the verdict, cannot by sustained, under the general and uniformly recognized rule that such motions must be denied when there is any evidence to sustain the plaintiff's case. In passing upon such motions, the power of the court is strictly limited. It has no authority to weigh the evidence, but must view it in the light most favorable to plaintiff. In other words, the court must give to plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference that may be drawn from such evidence.'

See also, Mesich v. Board of County Com'rs of McKinley County, 46 N.M. 412, 129 P.2d 974; Knight . Trogdon Truck Co., 191 Wash. 646, 71 P.2d 1003; Lessy v. Great Atlantic & Pacific Tea Co., 121 Pa.Super. 440, 183 A. 657; Bohumir Kryl Symphony Band, Inc., v....