S. Hanson Lumber Co. v. De Moss, 50380
| Decision Date | 14 November 1961 |
| Docket Number | No. 50380,50380 |
| Parties | S. HANSON LUMBER COMPANY, a copartnership, Plaintiff-Appellee, v. Roy R. DE MOSS and Evelyn A. De Moss, Defendants-Appellees, Overland Builders, a co-partnership, Orman Overland, Helen L. Overland and Orman Overland, as Administrator of the Estate of Gunnar R. Overland, Deceased, Defendants-Appellants. |
| Court | Iowa Supreme Court |
Donald R. Payer, Ames, for defendants-appellants.
Clark & Clark, Ames, for defendants-appellees.
Pasley, Singer & Seiser, Ames, for plaintiff-appellee
Plaintiff brought its action to foreclose a mechanic's lien for materials furnished in the construction of a dwelling house which the defendants Overland Builders had contracted to erect for the defendants DeMoss. All defendants stipulated that the plaintiff was entitled to recover an agreed amount and to foreclosure of its lien against them. Each defendant cross-petitioned against the other. Defendants DeMoss asked damages against Overland Builders for claimed failures to build the house according to agreement, and for a sum which the defendant Roy R. DeMoss alleged due for services in transporting certain materials to the scene of the building. Defendant Overland Builders in their cross-petition asked allowances for extras furnished in the construction not included in the contract. The trial court entered judgment for the plaintiff in accordance with this stipulation; found defendants DeMoss entitled to certain allowances for services and for failures of the Overland Builders to carry out their contract; and gave the Overland Builders certain additional credits for extras furnished. The defendant Overland Builders has appealed from the final judgment on the issues as between the cross-petitioning defendants.
Modified and affirmed and remanded for decree in accordance with opinion.
The entire controversy here is between the defendants. Before trial it was stipulated that the plaintiff which had commenced this action to foreclose its mechanic's lien against all defendants, was entitled to decree and judgment as prayed against all defendants in the sum of $8,966.17, with interest from October 23, 1958, and to foreclosure against the described real estate. So we have only the issues as between the defendants DeMoss, husband and wife, hereafter referred to as DeMoss, and the defendants Overland Builders and Orman Overland, Helen L. Overland and Orman Overland as administrator of the estate of Gunnar R. Overland, deceased, hereafter referred to as Overland, as made by their cross-petitions. This is not to say that they are simple or easily resolved.
On May 19, 1957, Overland and DeMoss entered into a written contract by the terms of which Overland sold to DeMoss a certain building lot as described therein for the sum of $26,411.76. The contract provides: 'First party (Overland) agrees to erect a two-level residence house on the premises according to the plans and specifications attached hereto, marked Exhibit 'A' and by this reference made a part hereof.'
Overland proceeded to build the house. Building materials were purchased, in considerable part at least, from the plaintiff, and their price was unpaid in the amount set forth in the stipulation referred to above. When plaintiff's action was commenced against both the contractor and the owners of the real estate, each cross-petitioned against the other. At that time DeMoss had paid Overland $23,000, leaving $3,411.76 still unpaid on the original contract price. There is no dispute as to this. Overland cross-petitioned against DeMoss, asking judgment for this sum and for an additional amount of $4,345.13 for extras not included in the written contract. DeMoss' cross-petition asked judgment against Overland for services rendered and material furnished and for damages for defective workmanship in the sum of $4,156.27. Each defendant replied, denying the allegations of his adversary's cross-petition.
The trial court, after granting plaintiff judgment as stipulated, found Overland entitled to extras in the sum of $741.75, making the total amount of the contract plus extras $27,153.51. It also found DeMoss entitled to an offset of $3,121.47 on cross-petition, leaving a balance due on the contract of $1,032.04. It is this part of the decree which is chiefly involved in this appeal, Overland being aggrieved both by refusal of the court to allow him a larger amount for extras and because the court allowed DeMoss the offset stated. The decree also provided that DeMoss should have a judgment over against Overland for the sum due the plaintiff, reduced by the amount of $1,032.04 above referred to.
I. The issues are almost altogether factual. DeMoss claims they did not receive a copy of the plans and specifications referred to as Exhibit 'A' in the written contract. But both of them signed the contract. Roy R. DeMoss was present much of the time while the house was being built and we think the evidence that he knew or should have known of the plans as they were being carried out clearly preponderates. In addition he introduced as his Exhibits F-1, F-2, and F-3, certain blue prints which in themselves show the general plans and in many cases the nature of the material to be used in the building. It is not open to him now to claim anything for oral agreements made before the written contract and so far as the subject of the claimed agreements is covered by it. Any such agreements were merged in the written contract. The point seems elementary, but see Henn v. McGinnis, 182 Iowa 131, 134, 165 N.W. 406, 407. Likewise, we are committed to the rule that when the contractor has substantially complied with his contract he is entitled to recover the contract price with deductions for any defects or incompletions. Farrington v. Freeman, 251 Iowa 18, 23, 99 N.W.2d 388, 391, and citations. This is not disputed by DeMoss; in fact he cites Stratmeyer v. Hoyt, 189 Iowa 85, 90, 91, 174 N.W. 243, 245, which states the rule.
But it is also true that agreements made after the written contract which modify it or add to it or are collateral to it are valid and enforceable. So DeMoss may recover for any services redered by him or materials furnished in accordance with oral agreements made after the written contract had been entered into; and Overland is entitled to extras ordered or agreed upon thereafter not covered by the contract. Iltis v. Gentilly, 234 Iowa 689, 693, 13 N.W.2d 699, 701, and cases cited. All of these are well settled rules, and leave only questions of fact for determination.
II. It will be seen that there are two major areas of dispute. One, was Overland entitled to additional allowances for extras, and if so, for what items and in what amount? Two, should DeMoss have anything for services and materials furnished, or as damages for Overland's failure to perform the contract according to its terms, and if so, how much? Each of these, however, breaks down into a consideration of many items, a full and complete discussion of each of which with an analysis of the evidence concerning it would require an unreasonable use of space and would be of no value to the legal profession. Two additional legal principles, however should be stated. The first is that in equity cases where facts are in dispute we give weight to the findings of the trial court, particularly where the credibility of the witnesses is involved. No citation of authority is needed for this often announced principle.
The second is that one who does not appeal can obtain no greater relief here than was given him by the trial court. Fryer v. New York Brokerage Company, 152 Iowa 688, 692, 133 N.W. 110, 111; Rankin v. Schultz, 141 Iowa 681, 688, 118 N.W. 383, 386. This means that DeMoss, who did not appeal, can not now complain of allowances denjed to him or made to Overland by the judgment below.
III. We turn first to the items for extras claimed by Overland which the trial court did not allow. The first of...
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Moulton v. State, s. 15373
...all signed a permit with this provision." These new contracts supersede prior lease arrangements, See South Hanson Lumber Company v. DeMoss, 253 Iowa 204, 111 N.W.2d 681 (1961), and any oral representations must yield to subsequent contracts. Id.; See also, SDCL This court specifically held......
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Moulton v. State, s. 14506
...all signed a permit with this provision. These new contracts supersede prior lease arrangements, see, South Hanson Lumber Company v. DeMoss, 253 Iowa 204, 111 N.W.2d 681 (1961), and any oral representations must yield to subsequent written contracts. Id.; See also, SDCL The evidence does no......
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McCarthy v. McCarthy
...N.W.2d 652, 659; Randolph Foods, Inc. v. McLaughlin (1962), 253 Iowa 1258, 1277, 115 N.W.2d 858, 879; S. Hanson Lumber Co. v. DeMoss (1961), 253 Iowa 204, 208--209, 111 N.W.2d 681, 685; Schlotfelt v. Vinton Farmers' Supply Co. (1961), 252 Iowa 1102, 1115, 109 N.W.2d 695, The majority opinio......
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McDonald v. Welch
...contested at trial but which we take as a final adjudication because of defendants' failure to appeal. See Hanson Lumber Co. v. De Moss, 253 Iowa 204, 208, 111 N.W.2d 681, 685. We further accept the rule that the proper measure of recovery is the reasonable value of the services rendered an......
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Essentials of Building Construction Contracts
...21. Keller Construction Corp. v. George W. McCoy & Co., 119 So.2d 450 (La. 1960); see also, S. Hansen Lumber Co. v. De Moss, 253 Ia. 204, 111 N.W.2d 681 (Iowa 1961); Batson-Cook Co. v. Loden & Co., Inc., 129 Ga.App. 376, 199 S.E.2d 591 (1973) (architect far exceeded industry standards in re......