Pendleton v. Sard

Decision Date08 December 1972
Citation297 A.2d 889
PartiesChester S. PENDLETON v. Rebekah W. SARD. Rodney V. LEACH v. Rebekah W. SARD. Douglas I. GRINNELL v. Rebekah W. SARD.
CourtMaine Supreme Court

Grossman, Faber & Miller 'P. A.', by A. Alan Grossman, Barry M. Faber, Rockland, Collins & Crandall, by Wayne R. Crandall, Rockland, for plaintiff.

Eaton, Glass, Marsano & Hammond, by Francis C. Marsano, Belfast, Robert Hale, Washington, D. C., for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK, and ARCHIBALD, JJ.

WEBBER, Justice.

These three cases were consolidated for hearing before a Referee and were briefed and argued together on appeals to this Court by the defendant from judgments rendered against her in the Superior Court. Issues are raised which are not common to all three cases and therefore each case will be dealt with separately.

Pendleton v. Sard

On the basis of supportive evidence, the Referee found that plaintiff, with the knowledge and consent of the defendant owner, furnished labor and materials which entered into the construction of defendant's dwelling house. Plaintiff alleged and proved full compliance with the provisions of 10 M.R.S.A., Secs. 3251 to 3255 inc., and became entitled to a lien therefor as found by the Referee. As to the dollar amount to be secured by lien, the fair and reasonable value of the lienable items necessarily had to be determined by evidence. Although the parties may by contract fix in advance what this fair and reasonable value of the items in place will be, no such contract was proven in this case. Thus it became proper to introduce evidence bearing on the question, 'In what amount has the property been enhanced by the labor and materials furnished?' Bangor Roofing v. Robbins et al. (1955) 151 Me. 145, 148, 116 A.2d 664, 666.

As testimony was adduced it became evident that the plaintiff had applied a markup to cover profit and transportation. Although not separately lienable, they are proper factors for consideration in determining the fair and reasonable value of the lienable items incorporated into the property. Bangor Roofing v. Robbins et al., supra. In the course of the cross-examination of the plaintiff, the defendant's counsel was deprived by ruling of the Referee of the opportunity to inquire as to the hourly price actually paid by plaintiff to his workmen for their labor. This deprivation of the right of cross-examination on a material issue constituted prejudicial error. This error, however, adversely affects only the determination of the dollar amount secured by lien and in nowise taints the adjudication that plaintiff is justify entitled to a lien for the fair and reasonable value of the items which were shown by the evidence to have been furnished. The case must therefore be remanded for further hearing upon the sole issue of the fair value of the items heretofore properly determined to be lienable.

Counterclaim-Sard v. Pendleton

The defendant Sard incorporated into her answer to plaintiff's complaint a counterclaim in effect asserting that the parties had entered into a contract by the terms of which Pendleton had agreed to construct defendant's house according to plans drafted by defendant's architect for a fixed price of $45,952. The defendant further asserted that plaintiff had failed to perform said contract to the damage of the defendant in the sum of $50,000.

The Referee found that the parties never entered into a valid and judicially enforceable contract and therefore gave judgment for plaintiff on the counterclaim. Under well established principles we treat the Referee's finding as final if supported by credible evidence and not otherwise erroneous as a matter of law.

The architect requested that Pendleton and another contractor furnish estimates based on preliminary drawings which he had made. In the case of Pendleton the architect himself prepared the estimate and produced a figure of $45,952 which Pendleton then adopted as his own estimate of the cost of completion. An estimate was also received from the other contractor which was somewhat higher than the architect's projection and was therefore rejected. The architect anticipated that in accordance with usual practice the estimate under normal conditions would come within 5 to 10% of actual completion cost. The preliminary drawings were not accompanied by specifications and furnished no information with respect to quantity and quality of materials, interior and exterior electrical work, water system, plumbing and sewage disposal system, painting and the like. These drawings merely portrayed one exterior facade of the proposed house and the basic floor plans of the first and second floors. The architect candidly admitted that a house could not be built from these drawings alone. Additional detailed working plans were required and in fact were furnished from time to time as the work progressed, but it is important to note that no such working plans existed when plaintiff submitted his estimate to the defendant. The architect also testified that the defendant owner had had no borings taken to determine the presence of ledge and that all parties proceeded on the assumption, based on a visual inspection of the site, that no ledge would be found. The subsequent discovery of ledge in areas requiring excavation proved to be one of several factors causing a substantial excess over estimate in the cost of construction.

It is unfortunate for both parties that plaintiff communicated his estimate to defendant by letter couched in somewhat ambiguous terms. On August 19, 1968 he wrote to inform her that he had 'come up with a figure of ($45,952) for the complete job.' It is apparent that both parties thereafter proceeded on the basis of erroneous assumptions. Pendleton had done work for Mrs. Sard on prior occasions and always on a time and materials rather than a fixed price basis. He seems to have assumed that the defendant would expect to pay on a time and materials basis and would understand, as did her architect, that his proposed figure was merely an estimate. The defendant, however, obviously assumed that she had received an offer to build at a fixed price, which offer she had accepted by orally directing plaintiff to proceed with the work. She seems to have attached no significance to the fact that her architect informed her that the 'estimate' included an allowance of $1,000 for a well but that it was 'anyone's guess what a well will cost since it is a matter that cannot be foreseen.' The words 'complete job' were completely ambiguous as used on August 19, 1968 since at that time neither party had any information as to what would ultimately constitute a 'complete job.' Thus their minds cannot be said to have met with respect to this essential point. This becomes increasingly evident when we note that the defendant admits that as the work progressed, new directives were given from time to time with respect to work completed or in progress. She acknowledges an obligation to pay for at least some of this additional work as 'changes' or 'extras.' But one is forced to ask, changes from what? The terms 'changes' and 'extras' are without legal significance until it can first be determined what the initial basic obligation of the building contractor was.

Based upon the foregoing considerations which we have summarized, the Referee found that no binding enforceable contract had been made by the parties upon which the plaintiff was obligated to the defendant. The Referee cited and relied upon Ross v. Mancini, (1950) 146 Me. 26, 76 A.2d 540 and Swan Co., Inc. v. Dean, (1955) 151 Me. 359, 118 A.2d 890. He quoted from the opinion in Corthell v. Thread Co., (1933) 132 Me. 94, 99, 167 A. 79, 81, as follows:

'There is no more settled rule of law applicable to actions based on contracts than that an agreement, in order to be binding, must be sufficiently definite to enable the court to determine its exact meaning and fix exactly the legal liability of the parties. Indefiniteness may relate to the time of performance, the price to be paid, work to be done, property to be transferred, or other miscellaneous stipulations of the agreement.'

The cited cases and the quoted statement of the law fully support the legal conclusions of the Referee as applied to the facts found. Although the Superior Court, in accepting the Referee's report, did not deal explicitly with defendant's counterclaim, we treat the judgment rendered as implicitly including judgment for the plaintiff on the counterclaim. We discern no error in this result.

Leach v. Sard

The plaintiff Leach by his complaint does not seek to impose a lien upon the defendant's premises but rather seeks recovery as upon quantum meruit for the fair value of 'goods sold and delivered and labor performed' for the defendant. The Referee made no detailed findings but merely awarded judgment for the amount claimed in the complaint. Here again the test is whether or not there is credible evidence to support the Referee's conclusion.

Plaintiff was requested by Pendleton to do the excavation work on the site. Although the defendant knew of the work being performed on her premises by the plaintiff, there was no contractual relationship between them. Plaintiff submitted bills from time to time to Pendleton who in turn approved them and forwarded them to defendant's architect. Upon his approval, the bills were paid by the defendant to Pendleton who then paid Leach. When the defendant stopped making payments to Pendleton she declined to pay the last bill submitted by Leach to Pendleton. Leach has not as yet instituted any action against Pendleton for his unpaid balance but has proceeded directly against the defendant owner.

The general rule almost universally followed was well stated in 53 Am.Jur.2d 932, Mechanics' Liens, Sec. 418 in these terms:

'* * * it is generally recognized-apart from unjust enrichment * * * that...

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