Phillips v. Green St. Corp.
| Decision Date | 13 June 1968 |
| Docket Number | No. 2,No. 20679,20679,2 |
| Citation | 143 Ind.App. 30,237 N.E.2d 590 |
| Parties | Lawrence PHILLIPS, Appellant, v. GREEN STREET CORPORATION, Brownsburg State Bank, and Russell P. Wurster, d/b/a Wurster and Wurster Builders, Appellees |
| Court | Indiana Appellate Court |
Paul H. Frazier, Hall, Frazier & Crokin, Indianapolis, for appellant.
John C. Stark, Elisabeth M. Daily, Indianapolis, Henderson & Stark, Joseph C. Wallace, Indianapolis, of counsel, for appellees.
This is an action brought by the appellant, Lawrence Phillips, against the appellees, Green Street Corporation and the Brownsburg State Bank, to foreclose a mechanic's lien. The appellee, Russell P. Wurster, d/b/a Wurster and Wurster Builders, intervened in this action and as general contractor filed a counterclaim for breach of contract against the appellant, a subcontractor.
The issues were formed by appellant's second amended complaint to foreclose a mechanic's lien and the answer thereto. The appellee, Green Street Corporation, admitted ownership of the real estate in question. The appellees, Green Street Corporation and Brownsburg State Bank, denied that the work by the appellant was done under their direction and with their consent. They also denied that the appellant had agreed to do the masonry work in laying up the walls of the bank building approximately 46 feet by 80 feet.
The appellee, Russell P. Wurster, d/b/a Wurster and Wurster Builders, filed a counterclaim for breach of contract, alleging that the appellant had failed to perform labor in accordance with the plans and specifications, and the directions and instructions of the appellee Wurster and the architect. These allegations were denied by the appellant.
Trial was had to the court, and the court entered judgment against the appellant on his complaint to foreclose a mechanic's lien, and found in favor of the appellee, Russell P. Wurster, d/b/a Wurster and Wurster Builders, on its counterclaim for breach of contract. The amount of the judgment against the appellant was in the sum of $217.84 and costs taxed at $40.10.
In rendering said judgment, the court also entered the following special findings of fact and conclusions of law:
'1. That defendant Green Street Corporation is, and at all times during the construction of the building on the real estate covered by the notice of intention to hold mechanic's lien filed by plaintiff was, the owner of such real estate, more particularly described as follows:
A part of Lots 1 and 8 in Block 3, in the original Town of Brownsburg, Hendricks County, Indiana.
'2. That defendant Brownsburg State Bank is a lessee of defendant Green Street Corporation under a lease covering the above described real estate.
'3. That defendant Russell P. Wurster, d/b/a Wurster and Wurster Builders, entered into a contract during June, 1963, with defendant Green Street Corporation, under the terms of which said Russell P. Wurster, d/b/a Wurster and Wurster Builders, agreed to act as general contractor for the construction, in two stages, of a building on the above described real estate for said Green Street Corporation in accordance with plans and specifications prepared by Courtenay Paul Macomber, the supervising architect for such construction.
'4. That plaintiff and defendant Russell P. Wurster, d/b/a Wurster and Wurster Builders, entered into a contract during June, 1963, under the terms of which the plaintiff agreed to furnish all materials and perform all labor necessary for the masonry work in connection with the construction of the building owned by defendant Green Street Corporation in accordance with plans and specifications prepared by Courtenay Paul Macomber for an agreed price of $14,700.00.
'5. That neither defendant Green Street Corporation nor defendant Brownsburg State Bank agreed or consented to any contract between plaintiff and defendant Russell P. Wurster, d/b/a Wurster and Wurster Builders.
'6. That plaintiff and defendant Russell P. Wurster, d/b/a Wurster and Wurster Builders, agreed upon certain additions to the contract price in the aggregate sum of $195.00, comprised of a brick allowance of $120.00 and $75.00 for fireproofing a night depositary.
'7. That 21,330 bricks, 11,166 blocks, miscellaneous lintels, 247 lineal feet and oen replacement piece of cut limestone were required for the masonry work in connection with the construction of both stages of the building.
'8. That plaintiff failed to follow the plans and specifications in the prosection of his work on the east wall of the building, delayed the progress of construction work by his repeated failures to perform masonry work on the first stage of the building as scheduled or requested by the architect and defendant, Russell P. Wurster, d/b/a Wurster and Wurster Builders, demanded to do masonry work at times which were not in accordance with trade practices and which would have caused undue and extra expense to said defendant as the general contractor, and failed to submit a progress schedule for his masonry work on the second stage of the building as requested by the architect through the general contractor.
'9. That defendant Russell P. Wurster, d/b/a Wurster and Wurster Builders discharged plaintiff on October 22, 1966.
'10. That prior to the discharge of plaintiff by defendant Russell P. Wurster, d/b/a Wurster and Wurster Builders, said defendant furnished materials and performed labor in connection with a ledger plate for the plaintiff, said work having a reasonable value of $40.00, and plaintiff performed labor at the request of said defendant in relaying an east wall of the building, said labor having a reasonable value of $53.40, thereby making an adjusted contract price of $14,908.40.
'11. That, at the time of his discharge, plaintiff had furnished 7,403 blocks, 13,000 bricks, miscellaneous lintels and 144 lineal feet of cut limestone, performed all labor necessary for the completion of the first stage of the building, covering 52 feet by 46 feet and being the east part thereof, except for the cleaning of bricks and certain caulking work, and had materials, consisting of 842 blocks and 4,312 bricks, on the job site to be used for masonry work on the second stage of the building.
'12. That defendant Russell P. Wurster, d/b/a Wurster and Wurster Builders, engaged M. Mostow and Company, Inc., as masonry contractor, to complete all masonry work on the building and said contractor was paid the reasonable sum of $5,376.05 for furnishing 2921 blocks, one piece of cut limestone and miscellaneous lintels and performing all labor necessary for laying 3,763 blocks, 8,330 bricks, 10 miscellaneous lintels and 103 lineal feet and one replacement piece of cut limestone in connection with masonry work on the second stage of the building, covering 28 feet by 46 feet and being the west end thereof, and for cleaning all brick and completing certain caulking work for both stages of the construction.
'13. That defendants Green Street Corporation and Russell P. Wurster, d/b/a Wurster and Wurster Builders, made payments to plaintiff for labor or to his suppliers for materials ordered by him, consisting of 7,403 blocks, 21,330 bricks, miscellaneous linetels and 247 lineal feet of cut limestone, in the aggregate amount of $9,351.04, and made payment to a supplier of plaintiff for materials not used by him in connection with the construction of the building in the amount of $121.15.
'14. That the amount owed by defendant Russell P. Wurster, d/b/a Wurster and Wurster Builders, to plaintiff was $60.16, such sum being the difference between the adjusted contract price of $14,908.40 less $5,376.05 paid to complete the masonry and the payments to or for the benefit of plaintiff in the amount of $9,472.19.
'15. That defendant Russell P. Wurster, d/b/a Wurster and Wurster Builders, incurred extra costs and suffered special losses because of plaintiff's acts and omissions in the following amounts:
Description Amount
----------- ------
Labor in tearing down east wall (3 hours of Mr
Wurster's time at $8.00 per hour plus 5 1/2 hours
of two men at $4.00 per hour) $ 68.00
Loss of time due to Mr. Phillips failure to prosecute
work between June 29, 1963, and July 8, 1963
(Foreman--40 Hrs. at $4.25 per hour) 170.00
Extra meetings with Architect on August 9, 1963
and on October 19, 1963 (5 hours of Mr. Wurster's
time at $8.00 per hour) 40.00
-------
TOTAL $278.00
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'Upon said facts the Court states the following conclusions of law:
fees under IND.ANN.STAT. § 43--707 (Burns 1965).
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