Muchmore Equipment, Inc. v. Grover, 66162

• Decision Date: 20 January 1982
• Docket Number: No. 66162,66162
• Citation: 315 N.W.2d 92
• Parties: MUCHMORE EQUIPMENT, INC., an Iowa Corporation, Appellee, v. Jim GROVER, Appellant, Robert Muchmore and Diana Muchmore, Appellees.
• Court: Iowa Supreme Court

Page 92

315 N.W.2d 92

MUCHMORE EQUIPMENT, INC., an Iowa Corporation, Appellee, v. Jim GROVER, Appellant Robert Muchmore and Diana Muchmore, Appellees.

No. 66162.

Supreme Court of Iowa.

Jan. 20, 1982.

A. F. Craig, Jr. of Craig, Wilson & Flickinger, Independence, and George E. Wright of Napier, Wright & Wolf, Fort Madison, for appellant.

Franklin W. Sauer of Hoeger, McClintock & Sauer, Independence, for appellees.

Considered by REYNOLDSON, C. J., and UHLENHOPP, HARRIS, McGIVERIN, and SCHULTZ, JJ.

UHLENHOPP, Justice.

This appeal presents four issues in an action on a construction contract by a builder against an owner. The pleadings involve considerable procedural entanglement of parties, but in the disposition we make of the case we need only consider Robert Muchmore individually as the builder asking recovery and Jim Grover individually as the landowner for whom the building was constructed.

At the time of construction Grover had been a farmer for over thirty years and a substantial farmer in Buchanan County for twenty-three years. In 1978 he and his sons operated about 1500 acres of land. They had a large corn crop that year.

In the fall of 1978 Grover decided to place his corn in the federal reserve program. He contacted two firms which sell and build grain storage bins, but they were unable to construct the bin in time for the 1978 crop. Grover therefore contacted Muchmore, a nearby farmer who also built and constructed grain storage facilities.

Grover and Muchmore negotiated about construction of the bin that fall so that Grover could store his standing crop in it. Muchmore ascertained from suppliers that he could have the material on hand in three weeks, and he told Grover that he could obtain the labor to pour the concrete for the foundation and floor; Grover was to provide the fill. Muchmore's personnel were to construct the building itself. Muchmore gave the impression that construction would be completed within six weeks, but he did not expressly so promise.

On September 25, 1978, the parties entered into a written agreement in which Grover agreed to pay $39,755.12 for the constructed building. The written contract did not contain a completion date, did not cover the fill, and left the concrete work open. It also contained this term on the reverse side:

In event of default under the terms of this agreement, the purchaser owner agrees to pay service charges at the rate of 1% per month, plus legal fees.

The contract which Muchmore filed with the local Agricultural Stabilization and Conservation Service, through which Grover obtained a loan for the building, was somewhat different, and this apparently got Muchmore into some difficulty. We are satisfied, however, that the actual agreement was as we have stated.

The material arrived on time, and Grover obtained the fill. The laborers who were to pour the concrete proved to be unsatisfactory, however, and this part of the process dragged on and consumed valuable time when Grover and his sons should have been combining and storing the crop. Eventually Grover put additional personnel on this part of the work. Those individuals asked $8 an hour but finally accepted $7.50 an hour from Grover, in Muchmore's presence. Muchmore eventually completed construction of the building, and in the process utilized the labor of two of Grover's sons-one for 114 hours and the other for 7 hours. Construction was not completed, however, until about five or six weeks later than originally anticipated. Considerable snow then lay on the ground, and corn lodging and droppage occurred. One field of eighty acres could not be combined until spring. As a result, Grover lost a substantial amount of corn.

Grover paid $5755.12 when the contract was signed plus $25,000 when the material was delivered. The balance was to be paid on completion of the building. Some "extras" were installed, however, and Muchmore did not get around to final settlement until March 15, 1979. That day he came to Grover's farm home, and the two men went over the bills and arrived at a final settlement of $16,862.04. Two items remained outstanding. Part of the structure moved somewhat in the wind, and Muchmore promised to install a "truss kit." The men agreed at the time that Grover should withhold $500 to secure performance of that promise, reducing the present amount to be paid to $16,362.04. (Subsequently the truss kit became unnecessary, restoring the balance due to $16,862.04.) The other item involved the work of Grover's sons. Muchmore did not dispute that he owed them since he was to construct the building. He also apparently did not materially dispute their hours; the two men went over the records of their work. But Grover thought his sons should have $7.50 per hour, the same as the laborers he had paid, while Muchmore thought this was too much. Grover wanted Muchmore to pay the sons directly; he did not want to take their pay out of his check to Muchmore and then pay them himself.

The two men differed markedly at trial as to how this difference was resolved. Apparently it was resolved in some fashion because Grover drew and delivered his check to Muchmore for $16,362.04, and Muchmore endorsed a check payable to him and Grover for Grover's loan from A.S.C.S. Grover testified that Muchmore said he would come back that day with a check for the sons. Muchmore testified he only agreed he would "try." Just what he meant by that is not clear. He did not return or otherwise settle with the sons.

The men were questioned about this point several times at trial. The following excerpts are illustrative. Grover testified:

Q. Did you have a discussion at that time with regard to settlement of this matter? A. Yes, we discussed different items.

Q. Did you then-why don't you tell me what happened about your writing a check. He gave you a bill or what happened? A. He brought his bills. There was some additions that we did on the building and he had all his bills with him and we sat down and went over them, and along with it, I had the check from A.S.C.S. I got out he needed to countersign and I mentioned the boys' time, pointed the calendar out where they kept track of their time.

Q. All of this was to arrive at a figure to settle it? A. Yes.

Q. What did you mention to him about the boys' time? A. Well, I said, well, you know, the boys had hours in out there, helped erect the building, so we could get done. He said yes.

Q. Did you tell him how many hours there were then? A. We got the calendar down and I totaled them up. We agreed on the total hours there and he remarked, well, make your check out to me for the total and I'll make the checks for the boys.

Q. He told you not to take it out of the check, give it to him? A. He said make the total check to him and he would make out a check for the boys.

Q. Did you make the check to him? A. Yes.

Q. Did he make a check out for the boys? A. No.

Q. Did you ask him to make a check for the boys before he left? A. Yes.

Q. Why didn't he? A. He said he didn't have his checkbook and he wasn't the bookkeeper.

Q. Did he at that time say when he would give the check? A. He said he would be back that afternoon to give me the boys' check.

Q. Did he come back that afternoon? A. No.

Q. Did he ever come back? A. No.

Muchmore testified:

Q. What hourly rate, if any, did he want you to pay them at that time? A. $7.50 an hour.

Q. Was this after giving you the check withholding the five hundred dollars? A. Yes, it was.

Q. What did you tell him in response to that conversation? A. That's more than our help is paid.

Q. Did you tell him how much you paid your help? A. No I didn't.

Q. Did he ask you how much you paid your help? A. No.

Q. What happened next? Did you say anything further to him? A. He wanted me to get the checkbook and pay him. I said I don't carry the checkbook with me. He was quite persistent, but I don't carry the checkbook. I never do.

Q. Did you tell him you would return and pay those boys? A. He wanted me to return right away and pay them. I said I will try. We had a sow having pigs. My wife called out she was having trouble with the sows having pigs and I tried at least to go home, and he said here sign this A.S.C.S. check and I signed it and left.

Also:

Q. Talking about the day, March 15th, the day you got the sixteen thousand dollar check, you told him you were going home to get your checkbook and as you say return with a check for the boys. Why didn't you get back that day? A. Had sows having pigs.

Q. How long did that last? A. Three or four days, a week. I don't remember for sure.

Q. Wasn't there anybody you could have sent over to Jim Grover's with a check? A. Everybody had their chores to do.

Q. You don't use the mails? A. At times.

Q. Could you have put the check in the mail? A. Could have. There was no agreement on the amount though, sir.

Q. You could have put the check in the mail, what you thought they were worth? A. That was not agreed upon.

Q. You really, when you left on March 15th, you intended to pay the boys something for their wages? A. Yes.

Q. And how much? A. They were starting help. Starting help started at $3.00 an hour.

Q. That's what you intended to pay them? A. Yes.

Q. For the number of hours that they worked? A. Yes.

Q. You still think you owe them that much? A. They want to pay their bill. I'll pay mine.

Muchmore's deposition testimony was read to him at trial and he expressed no disagreement with it. That testimony included this:

Q. But you did tell him that you didn't have your checkbook? A. I never carried a checkbook.

Q. Did you tell him that? A. Yes.

Q. Did you tell him that you would go home and get your checkbook and bring him a check back today? A. I would try to.

Q. And what amount were you going to put on the check? A. I don't know.

Q. Are you saying that you had not at that time agreed to bring him a check for the amount that he claimed you owed the boys? A. I didn't agree to pay...