Polk v. Bartlett

• Decision Date: 03 October 1961
• Docket Number: No. 39007,39007
• Citation: 365 P.2d 987
• Parties: W. E. POLK, d/b/a Polk Construction Co., and Fidelity and Deposit Co., of Maryland, a corporation, Plaintiffs in error, v. L. A. BARTLETT, d/b/a Bartlett Electric Company, Defendant in error.
• Court: Oklahoma Supreme Court

Page 987

365 P.2d 987

1961 OK 230

W. E. POLK, d/b/a Polk Construction Co., and Fidelity and Deposit Co., of Maryland, a corporation, Plaintiffs in error, v. L. A. BARTLETT, d/b/a Bartlett Electric Company, Defendant in error.

No. 39007.

Supreme Court of Oklahoma.

Oct. 3, 1961.

Rehearing Denied Nov. 7, 1961.

Syllabus by the Court

1. Where the meaning of an ambiguous written contract is in dispute, evidence of extrinsic facts and circumstances throwing light on the intention of the parties is admissible, and the construction of such contract then becomes a mixed question of law and fact and the cause is then properly submitted to a jury for its determination under suitable instructions of the court.

2. A motion for directed verdict or demurrer to the evidence should not be sustained unless there is an entire absence of proof tending to show a right to recover; and in passing on the same the trial court must consider as true all of the evidence favorable to the party against whom motion or demurrer is directed, together with all inferences that may be reasonably drawn therefrom and disregard all conflicting evidence favorable to the movant.

3. In an action on account which is subject to the Intangible Tax Law, 68 O.S.1951, Sections 1501-1515, it is error for the trial court to render judgment for plaintiff unless plaintiff has established compliance with said law.

Appeal from the Court of Common Pleas of Tulsa County; James P. Goeppinger, Judge.

Action by L. A. Bartlett as subcontractor to recover from W. E. Polk as prime contractor for extra materials furnished and labor supplied in performing subcontract. From judgment for plaintiff, L. A. Bartlett, defendant, W. E. Polk and his surety appeal. Reversed and remanded with directions.

James G. Davidson, Tulsa, for plaintiffs in error.

E. Paul Thieman, Jr., Tulsa, for defendant in error.

WELCH, Justice.

Plaintiff, L. A. Bartlett, d/b/a Bartlett Electric Company, submitted a bid to W. E. Polk, d/b/a Polk Construction Company, defendant, which was accepted. The material portions of said bid reads as follows:

'We wish to submit our figure for the elementary school building, Shidler-Webb City School District, in accordance with the plans and specifications as drawn by W. H. Elliott, Jr. Architect.

'We propose to install the electrical equipment as specified, on a time and material basis not to exceed $8,000.00. All invoices submitted by our office on time and material will be figured as follows: the cost of material plus 10% overhead and 10% profit, the cost of labor on the same basis.

'The above price of $8,000.00 does not include any intercommunication, public address, or clock system, as the specifications do not cover this phase of the installation. However, on receipt of the information needed to complete the installation of the above mentioned items, we propose to install this equipment on the same basis as mentioned in the above paragraph.

'We hope that this proposal will meet with your approval, and if awarded the contract we shall commence work within a weeks time.

'Respectfully submitted,

Bartlett Electric Company, Inc.

/s/ B. J. Lokey

For L. A. Bartlett.'

Within a few days thereafter plaintiff commenced his work under the terms of sub-contract based on said bid, and in due time the work was completed. The final estimate was paid by defendant's check, which with three previous payments, totaled exactly $8,000. At about the time of this final estimate, or shortly thereafter, plaintiff submitted to defendant a statement for extras in the amount of $1,032.13 for installation of intercommunication system, P. A. System, or clock system, and the sum of $86.52 for two unit heaters. Defendant refused to pay these sums and as a result this action was filed in the Court of Common Pleas of Tulsa County. It is the contention of the defendant that these installations were included in the contract, and therefore payment for installation was included in the $8,000 payment. Plaintiff contends they were not included in or under the terms of the contract, since they were not included in his bid. Upon examination of the bid, which was the basis of the contract, it was concluded by the trial court that the same was ambiguous and the true intent of the parties could not be determined from the written instrument. As a result thereof extrinsic evidence on behalf of both parties was admitted, and the case was submitted to a jury on its merits. A verdict was returned by the jury for plaintiff against defendant in the sum of $1,032.13, and judgment rendered accordingly. It is from said adverse judgment that defendant prosecutes this appeal.

Defendant's argument for reversal is presented in his brief under three separate propositions:

First, that the trial court did not have jurisdiction to render a judgment for the reason that plaintiff did not prove or offer any evidence of compliance with the intangible tax laws of the State of Oklahoma.

Second, that the trial court should have construed and interpreted the contract between the parties, and such a construction would have necessarily resulted in the dismissal of plaintiff's petition. Therefore defendants were entitled to have their demurrer to the evidence sustained, and a directed verdict sustained, or their motion, notwithstanding the verdict, sustained after the verdict.

Third, that the judgment should be reversed for the reason that there is no reasonable evidence tending to support the verdict.

We cannot agree with the argument presented under the second proposition. The first and second paragraphs of the written bid submitted provides that the figure submitted is for installation of electrical equipment in accordance with the plans and specifications as drawn by the architect. Should one ignore the third paragraph it would have been a simple matter of examining the plans and specifications to determine whether the extras were included. However, the third paragraph of said written bid provides that the price of $8,000 quoted did not include any inter-communication, public address or clock system, as the specifications did not cover that phase of the installation. It further provided for installation on basis mentioned in above paragraph. We should construe that to mean on a time and material basis which was a cost plus 10% or 20% basis.

It is apparent to us from the contention of the defendant that he apparently construed the plans and specifications to include the extras referred to, but the plaintiff did not so construe them at the time the bid was made and accepted. Each party offered evidence to support his contention.

Therefore, we are of the opinion the trial court was justified in admitting extrinsic evidence and submitting the case to a jury.

We have consistently held that where the meaning of an ambiguous written contract is in dispute, evidence of extrinsic facts are admissible, and construction of contract then becomes a mixed question of law and fact and should be submitted to a jury under proper instructions. Brogden v. Perryman, 176 Okl. 505, 56 P.2d 398; Swift v. McMurray, 133 Okl. 104, 271 P. 635, and Kershaw v. Reynolds, 124 Okl. 174, 254 P. 713.

Herein plaintiff testified that defendant was orally advised at the time the latter accepted the bid that the bid did not include installation of the system, and defendant said 'that is right, we will take that up later.' This evidence, together with consideration of the third paragraph of the written bid, and the reasonable inferences that may be drawn therefrom, is sufficient evidence to justify submitting question to a jury. Allied Reserve Life Insurance Company v. Cunningham, Okl., 355 P.2d 564.

We will not weigh evidence on appeal and where same reasonably tends to prove essential facts the verdict and judgment based thereon will be sustained. Cities Service Oil Company v. Billen, Okl., 347 P.2d 637.

Therefore, we find defendant's argument under his third proposition without merit.

We are of the opinion that the argument presented by defendant under his first proposition is meritorious. Plaintiffs in their argument supporting trial court's holding that proof of payment of intangible tax was unnecessary rely on our holding in the cases of Lumbermen's Supply Co. v. Neal, 189 Okl. 544, 119 P.2d 1017; Cole v. Harvey, 200 Okl. 564, 198 P.2d 199, and Gasper v. Mayer, 171 Okl. 457, 43 P.2d 467.

We find that these cases are clearly distinguishable from the case at bar. The Gasper case does not involve the intangible tax law, but turns on the question of accord and satisfaction.

In the Lumbermen's case the plaintiff Neal was employed as store manager of Lumbermen's at a stated monthly salary, plus 10% of the net earnings of the company to be computed after deducting costs of production, operating expenses, overall costs of doing business and all income taxes and other taxes, etc. He was paid the monthly salary for the three months period of his employment and brought this action for an accounting over the three months period to determine whether there was a net profit, and what the net earnings amounted to, if any.

In Cole v. Harvey plaintiff sued to foreclose an asserted mechanic's lien for work done to the amount of $91.35. The issue was whether defendant had agreed to pay for the work at $90cents per hour as plaintiff contended, or whether defendant agreed to pay the total sum of $20.00 for the work as the defendant contended. The jury verdict and judgment was for plaintiff for $40. This statement points up the issues presented on that appeal.

In both Lumbermen's and Cole this court held the intangible tax law was not applicable, and as stated above, we think those cases are clearly distinguishable.

Other former decisions of this court to the opposite result are much more nearly in point with the present case on the facts.

In McGill v. Cooper Supply Company, 196 Okl. 362, 165 P.2d 829, 830, plaintiff Cooper sold a heating unit to...