Obray v. Mitchell, 12114

Citation567 P.2d 1284,98 Idaho 533
Decision Date29 August 1977
Docket NumberNo. 12114,12114
PartiesR. Kay OBRAY, d/b/a Circo Painting Contractors, Plaintiff-Respondent and Cross- Appellant, v. Leslie L. MITCHELL, d/b/a Mitchell Construction Company, Defendant-Appellant and Cross-Respondent.
CourtUnited States State Supreme Court of Idaho

John B. Kugler, Pocatello, for appellant and cross-respondent.

Robert C. Huntley, Jr., of Racine, Huntley & Olson, Pocatello, for respondent and cross-appellant.

McFADDEN, Chief Justice.

This action was brought in two counts by respondent and cross-appellant R. Kay Obray for the recovery of certain monies alleged by him to be due and owing from appellant and cross-respondent Leslie L. Mitchell. Mitchell was the general contractor on two condominium projects in Colorado, Wild Irishman Condominiums and Shareholders Condominiums, on which Obray subcontracted to do the painting. After completing the work under the original contract, Obray performed certain additional services, or "extras" on these condominiums. He brought this action against Mitchell to recover the amounts allegedly owing for these extras.

In his amended complaint, Obray, in Count I, alleged that the value of the unpaid-for services performed on the Wild Irishman Condominium is $12,710.28. In Count II Obray alleged that he is due $1,629.14 for work on the Shareholder's Condominium. It is further alleged that as to this second claim the parties had agreed to a compromise of $500, but that Mitchell failed to tender this amount on time and as a result is now liable for the full $1,629.14.

Mitchell, in his answer, admitted liability for a portion of these "extras." He alleged tender of $1,613.96 to Obray as payment in full on the Wild Irishman claim but that Obray rejected this tender. He admits that he did not originally forward the $500 compromise to Obray, but alleges that it has now been tendered and paid into court. As an affirmative defense, Mitchell claims that if Obray is found to be entitled to be paid for these extras Mitchell is not liable because the work was "authorized or sought by the owner or some other third party" and as such is not the responsibility of appellant or, in the alternative, "that the work was necessitated by deficiencies in plaintiff's own services." The district court awarded Obray judgment on Count I for $12,710.28 plus interest in the amount of $1,440.47. As to Count II the court held Obray to the $500 compromise and awarded that amount. In its amended memorandum decision and order the court deleted the award of interest on Count I. Final judgment was rendered in the amount of $12,710.28 plus $59.00 in costs. 1

Mitchell has appealed from the judgment against him. Obray has cross-appealed from the $500 judgment on Count II and the deletion of the award of interest.

The record indicates that following completion of the painting on the two projects, Obray was asked by Mitchell to return to Colorado and repair some drywall work which had apparently been poorly done by the drywall subcontractor. Obray was also asked to do work on other items including doors, windows, frames, casings and baseboards. After returning to Colorado, Obray performed additional work on the condominiums.

Mitchell's initial contention is that he is not liable for the "extras" because he did not sign a purchase order for the additional work as required by the Mitchell/Obray contract. 2 The trial court found that during the course of the subject contract and during the previous contracts it was the practice of Mitchell to ignore this requirement and contract for the extra work by oral agreement. The court held that Mitchell had effectively waived the purchase order requirement and could not now rely on it for purposes of denying Obray's claim. We agree.

In Harrington v. McCarthy, 91 Idaho 307, 420 P.2d 790 (1966), this court stated:

"The rule is well recognized that the provision in a private building or construction contract that alterations or extras must be ordered in writing can be avoided by the parties to the contract where their words, acts or conduct amount to a waiver, modification, rescission or abandonment of that provision or where the owner by his acts or conduct is estopped to rely on it."

In Harrington this court held that prior conduct of the appellant in failing to require written change orders constituted a waiver of the contract provision requiring the same. The evidence in the present case supports the same conclusion.

Mitchell also maintains that the owners of Wild Irishman, or some third party, but not he, should be liable for the extra work which Obray was requested to do after returning to Colorado. The record supports his contention that the work was ordered or authorized by the owners; the evidence, however, does not show that the owners indicated they would directly compensate Obray for the work performed. In addition, the record shows that either Mitchell, his general superintendent, or his job superintendent was present each time Obray agreed to perform these extras, and that at no time did Mitchell or his agents ever object to the work being done by Obray.

Mitchell's own job superintendent, Red Martin, when questioned as to specific extras performed by Obray, testified that Obray was not asked directly by the owner to perform the work but that the decisions were made at a conference between Mitchell's representatives (including Martin), the owners and Obray. With reference to specific extras, Martin stated that Mitchell was told to "go ahead and paint it and then they (the owners) would take care of it." Martin also testified that if he spoke, he spoke for Mr. Mitchell.

Obray, as Mitchell's subcontractor, is therefore entitled to recover from Mitchell the value of the services performed. See Chartres Co. v. Abraham, 241 So.2d 276, (La.1970); Causte v. Board of Chosen Freeholders of Essex County, 9 N.J.Misc. 2, 152 A. 640 (1930); McGowan v. Gate City Malt Co., 89 Neb. 10, 130 N.W. 965 (1911). 3

Mitchell also contends that he should not be liable for this work because it was "necessitated by deficiencies in plaintiff's own services." In this sense, Mitchell is arguing that the work which was performed by Obray is not "extra" work, which would entitle Obray to additional compensation, but " additional" work, which is of necessity performed in fulfilling the original contract. The distinction was set forth by the Washington Supreme Court as follows:

"Extra work means work done which is not required in the performance of the contract, something done or furnished in addition to or in excess of the requirements of the contract. The distinction between extra work and additional work is that the former is work arising outside and entirely independent of the contract, something not required in its performance; the latter is something necessarily required in the performance of the contract and without which it could not be carried out. 13 McQuillan, Municipal Corporations § 37.165, p. 477 (3d ed. 1950).

"McQuillan says, at pages 482-84:

"Obviously extra compensation is not allowable for doing work covered by the contract notwithstanding it proves to be greater than anticipated when the contract was made; as necessary excavations through rock in constructing a sewer, or unexpected difficulties caused by rocks in the ground, or extra work in repairing damages to the work necessarily made in order to complete the contract in a proper manner, and a promise to pay therefor is without consideration." Dravo Corp. v. Municipality of Metropolitan Seattle, 79 Wash.2d 214, 484 P.2d 399 (1971).

There is no evidence in the record suggesting that the work performed by Obray was additional work as opposed to extra work. As such, Obray is entitled to extra compensation for all of the work performed after returning to Colorado.

Mitchell next contends that the trial court erred in refusing to allow him to amend his answer to include the affirmative defense of estoppel. At the close of the defendants' case, he moved the court to amend the answer to conform to the evidence pursuant to I.R.C.P. 15(b). Mitchell maintains that at one time Obray was asked to submit a claim for all "extras" incurred with respect to the condominiums, which he did, and that he should now be estopped to assert a claim for any extras which were not submitted at that time.

I.R.C.P. 15(b) provides:

"When issues not raised by the pleading are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings * * *."

The trial court has wide discretion in permitting amendments of pleadings to conform to the proof. Cameron Sales, Inc. v. Klemish, 93 Idaho 451, 463 P.2d 287 (1970); Grieser v. Haynes, 89 Idaho 198, 404 P.2d 333 (1965); Dickerson v. Brewster, 88 Idaho 330, 399 P.2d 407 (1965). Where evidence of an estoppel is received without objection it becomes an issue in the case and may be acted upon by the court although not pleaded. Loomis v. Church, 76 Idaho 87, 277 P.2d 561 (1954); and see Garren v. Butigan, 95 Idaho 355, 509 P.2d 340 (1973). Thus, the ruling of the trial court will be reversed if the record indicates it was an abuse of discretion to deny the motion to amend the pleadings pursuant to I.R.C.P. 15(b). The doctrine of "quasi-estoppel" is properly invoked against a person asserting a claim inconsistent with a position previously taken by him, with knowledge of the facts and his rights, to the detriment of the person seeking application of the doctrine. Evans v. Idaho State Tax Commission, 97 Idaho 148, 540 P.2d 810 (1975). The doctrine is distinguished from an estoppel in pais in that no concealment or misrepresentation of existing facts on the one side, nor ignorance or reliance on the other, is a necessary ingredient. Evans v. Idaho State Tax Commission, supra.

In the case at hand the trial court could reasonably have concluded that Obray did not take an inconsistent position in that he...

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