Ritzau v. Wiebe Const. Co., 39059

• Decision Date: 11 January 1974
• Docket Number: No. 39059,39059
• Citation: 214 N.W.2d 244,191 Neb. 92
• Parties: Siegfried RITZAU, Appellee, v. WIEBE CONSTRUCTION COMPANY, Appellant.
• Court: Nebraska Supreme Court

Page 244

214 N.W.2d 244

191 Neb. 92

Siegfried RITZAU, Appellee, v. WIEBE CONSTRUCTION COMPANY, Appellant.

No. 39059.

Supreme Court of Nebraska.

Jan. 11, 1974.

Syllabus by the Court

1. It is the duty of the trial court to rule upon the admissibility of evidentiary facts when they are offered in evidence. Their relevancy should then appear or the court should be informed as to the connection in which they will become relevant.

2. There being no specific standard by which reasonable value of labor and materials furnished shall be proved, prima facie proof thereof is made where a reasonable inference of such value flows from the evidence adduced.

3. The opinion of a qualified witness as to the value of services is admissible to prove such value when his testimony will aid the jury.

Wayne J. Mark, Fraser, Stryker, Marshall & Veach, P.C., Omaha, for appellant.

Richard J. Coenen and Charles L. Titus, Bradford & Bloch, Omaha, for appellee.

Heard before WHITE, C.J., BOSLAUGH, McCOWN, and CLINTON, JJ., and COLWELL, District Judge.

COLWELL, District Judge.

This is an action by plaintiff-appellee, Siegfried Ritzau, to recover from defendant Wiebe Construction Co., Inc., the reasonable value of labor performed and materials furnished at the oral request of that defendant, all in addition to the terms of and consideration for a written contract between those same parties. Plaintiff also claims prejudgment interest and attorney's fees. The St. Paul Fire and Marine Insurance Company was a defendant in the original pleadings and trial. All defendants answered by their general denial. On trial, judgment was entered for plaintiff against defendant Wiebe on a jury verdict for $16,326.25. Wiebe appeals; we affirm. The trial court denied plaintiff's motion for prejudgment interest and attorney's fees. Plaintiff cross-appeals. We affirm.

In 1968, the Housing Authority of the City of Omaha contracted with Wiebe as general contractor to build two separate 13-story housing facilities for the elderly in Omaha, Nebraska. Wiebe as principal and the St. Paul Fire and Marine Insurance Company as surety executed a performance bond as provided by section 52--118, R.R.S. 1943. Subsequently plaintiff, as a subcontractor, undertook to paint the interior of the two buildings, except ceilings and kitchen cabinets, pursuant to a written contract with Wiebe for the agreed consideration of $60,000. Plaintiff commenced work in January or February 1970. On May 23, 1970, Paul Knoble as the clerk of the works, who supervised the construction generally for the Housing Authority, prepared a 'punch list' which detailed the construction errors and omissions to be corrected by Wiebe as the general contractor before completion and acceptance. Wiebe, in turn, related the punch list to his respective subcontractors, who had the duties of compliance. There is a conflict in the evidence as to when the plaintiff completed his subcontract. Plaintiff asserts it was performed on or before June 12, 1970. Wiebe contends it was performed in October 1970, except $300 in items never performed or furnished and that all work done and materials furnished by plaintiff were in performance of the written contract.

Wiebe does not claim error in the submission to the jury of the questions of an oral contract between the parties and the implied promise to pay reasonable value for the work and materials. The jury could find from the evidence that between June 1 and June 10, 1970, Wiebe orally requested plaintiff to repaint a part of the interior of the two buildings required because of drywall construction repairs made by the drywall contractor, which made the painting on those surfaces unacceptable, after plaintiff had painted the original dry-wall surfaces; that there was an implied promise of Wiebe to pay plaintiff the reasonable value for this extra work and material; that plaintiff did perform extra work and furnish added material as requested in addition to the provisions of the written contract; and that plaintiff did repaint about 30 percent of the two buildings.

Weibe contends it was error for the trial judge to admit into evidence over objections certain of plaintiff's payroll records covering the period of June 12 to November 1970, claiming the evidence did not conform to the section 25--12, 109, R.S.Supp., 1972, of the Uniform Business Records as Evidence Act. The record shows that when these payroll records were offered, Wiebe did not object to the offer for the reason now asserted, but, rather, objected in substance that: (1) The records did not conform to the conditions of the general contract; (2) they were uncertified as required by the contract; and (3) they were copies and not the best evidence. The trial judge made proper inquiry as to the unavailability of the originals. Wiebe cannot now on appeal for the first time assert a new objection to the offer of the evidence. We find no prejudicial error in the ruling of the court. See, § 25--853, R.R.S.1943; Dorn v. Sturges, 157 Neb. 491, 59 N.W.2d 751.

When Wiebe offered the punch list on the direct examination of witness Knoble, plaintiff challenged the offer on the ground that the punch list related to the written contract and was not relevant. The objection was sustained. Wiebe urges this as prejudicial error. The punch list was in two volumes, exhibits 14 and 15, containing 218 legal-length typewritten pages and about 6,000 separate requirements for Wiebe's correction. The list specified areas and locations where the corrections were required, but no subcontractor was identified on the punch list by name therein or otherwise. At the time of the offer there was no direct evidence in the record connecting the punch list...