Scott v. Strickland, 56531

• Decision Date: 21 November 1984
• Docket Number: No. 56531,56531
• Citation: 10 Kan.App.2d 14,691 P.2d 45
• Parties: Jimmie D. SCOTT and Cecilia T. Scott, Plaintiffs-Appellants, v. Forrest STRICKLAND, Defendant-Appellee. and Jerry WILSON, d/b/a Woods-Ringstaff Lumber Company, a partnership, Plaintiff-Appellee, v. Jimmie D. SCOTT and Cecilia T. Scott, Defendants-Appellants, First National Bank of Elk City, Kansas, Defendant-Appellant, and Forrest Strickland, Defendant-Appellee.
• Court: Kansas Court of Appeals

Page 45

691 P.2d 45

10 Kan.App.2d 14

Jimmie D. SCOTT and Cecilia T. Scott, Plaintiffs-Appellants, v. Forrest STRICKLAND, Defendant-Appellee. and Jerry WILSON, d/b/a Woods-Ringstaff Lumber Company, a partnership, Plaintiff-Appellee, v. Jimmie D. SCOTT and Cecilia T. Scott, Defendants-Appellants, First National Bank of Elk City, Kansas, Defendant-Appellant, and Forrest Strickland, Defendant-Appellee.

No. 56531.

Court of Appeals of Kansas.

Nov. 21, 1984.

Syllabus by the Court

1. The common law of this state is recognized that when a person contracts to perform work or to render a service, without express warranty, the law will imply an undertaking or contract on his part to do the job in a workmanlike manner and to exercise reasonable care in doing the work.

2. In an action for breach of implied warranty, a party may plead and proceed upon the theories of both contract and tort until the facts have been developed and the case is ready to be submitted to the trier of the facts; however, one theory or the other must be elected prior to final submission of the claim to the jury.

3. A party is entitled to instructions explaining his theory of the case so long as evidence has been introduced in its support.

4. Since the mechanic's lien is purely a statutory creation, only strict compliance with the provisions in the statute will give rise to an enforceable lien.

5. K.S.A. 60-1105(b) permits amendment of a lien statement upon leave of court and in the furtherance of justice so long as the amount of the lien is not increased. An amendment to a valid lien against one spouse to add the name of the other spouse as a joint owner is not improper.

6. The notice requirement of K.S.A. 60-1103(b) requires service of the lien statement on "any one owner of the property." Proof of actual receipt of the lien statement by the person to be served will satisfy the requirement.

7. K.S.A. 60-1102(a)(4) requires that a reasonably itemized statement be given which is neither excessive nor insufficient in detail but which is fair and sufficient to inform the landowner of the claim and to enable him to ascertain whether the material was furnished and the charges fair.

8. A person who is not a party to a contract cannot be bound by the interest rate stated in that agreement.

9. In an appeal involving a suit for breach of implied warranty against a contractor and the action of a subcontractor to foreclose its mechanic's lien, the record is reviewed and it is held: (1) the trial court's instructions failed to adequately explain the plaintiff/owners' implied warranty claim; (2) the court erred in granting directed verdict on the plaintiff/owners' claim for fraud and punitive damages; (3) the lien statement of the subcontractor was not fatally defective and the trial court correctly ordered foreclosure of the lien; (4) the trial court erred in awarding the subcontractor interest at a rate other than that prescribed by statute.

Tom Crossan, Independence, for appellants.

Stanley L. Basler, Cherryvale, for appellee Jerry Wilson d/b/a Woods-Ringstaff Lumber Co.

Robert L. Eastman of Becker, Hildreth, Eastman, Gossard, Bell & Hassenplug, Coffeyville, for appellee Forrest Strickland.

Before MEYER, P.J., and REES and PARKS, JJ.

PARKS, Judge:

This appeal involves two cases which arose out of the same transaction and were consolidated for trial. In the first lawsuit, Jimmie D. Scott and Cecilia T. Scott brought an action against Forrest Strickland for breach of contract and breach of implied warranties of fitness and workmanship for his performance of a contract to construct a foundation and basement. Strickland counterclaimed for the amount allegedly due for the work performed. In the second lawsuit, Jerry Wilson d/b/a Woods-Ringstaff Lumber Company (lumber company), which supplied materials to the Scott job site, sought to foreclose the mechanics lien it obtained against the Scotts' realty for an unpaid lumber bill. The First National Bank of Elk City, which holds a prior mortgage on the Scotts' property, was joined in this lawsuit as a defendant. Both cases were tried to a jury.

Testimony at trial indicated that in the summer of 1982, the Scotts, then New Jersey residents, started taking steps to retire in Kansas. They had bought some rural property in Elk County and planned to construct a log cabin on the site. Another log cabin owner in the area recommended that they contact Forrest Strickland to construct the concrete basement. Jimmie Scott called Strickland and asked if he could build the basement. Strickland replied that he could not build one from poured concrete but that he could use concrete blocks reinforced with cement poured through the blocks. Scott sent a set of blueprints to Strickland and requested his price for the job. Other estimates supplied to Scott amounted to $13,000 to $15,000 but Strickland estimated the job's cost at about $8,000. Later Strickland contended that this price only included material and that labor would about double the total cost. The Scotts sent Strickland $5,000 and then an additional $2,000 and Strickland began work.

Since the Scotts still lived in New Jersey, Jimmie Scott asked his cousin, Roy Scott, to show Strickland the job site and monitor the progress of the work. Roy showed Strickland the site staked out by Jimmie for the basement and returned several times with a camera to take pictures of the job's progress. Roy testified that during the excavation he noticed that the stakes Jimmie had used were dislodged by the backhoe and the site seemed to have been moved. On return visits he witnessed and photographed Strickland pouring concrete over dirt without the wire mesh reinforcements called for in the blueprints and without the sand ordinarily used to line a poured concrete floor. The floor was only poured to a depth of 3 1/2"' to 4"' deep although Strickland admitted Scott had asked for a six-inch depth.

After a phone conversation in which Scott refused to advance further funds, Strickland walked off the job on October 8, 1982 and did not return. He wrote the Scotts requesting payment of an additional $5,221 for materials used in the work completed. Jimmie Scott, who has some construction experience and knows how to read blueprints, and Maida Parrish, who at one time operated a ready-mix concrete company, testified concerning the many alleged deficiencies in Strickland's work and the deviations from the blueprints. Some of these alleged defects included cracks in the concrete floor, failure to reinforce concrete block walls or to build them to the specified height, misplacement of windows and girder pockets, ill-constructed or absent lintels above windows and doorways and failure to vent or damp-proof the root cellar. Plaintiffs' witnesses also testified that the structure erected by Strickland was unusable and would have to be removed before a proper basement could be built on the site. No evidence was presented to establish the expense of tearing down the structure erected by Strickland.

Plaintiffs also alleged fraud by Strickland by virtue of the discrepancy between the initial $8,000 estimate of the job and the cost eventually claimed by him. Plaintiffs sought to show that Strickland received discounts from suppliers and subcontractors which he concealed from the Scotts and that some of the materials ordered by Strickland for the Scott job were either removed from the site or never delivered to it. Plaintiffs also complained that although Strickland represented in October that outstanding bills for materials amounted to $5,200, additional debts of $3,400 to Woods-Ringstaff and $1,888 to Consolidated Oil Well Services, Inc. had been charged to the Scott job.

Following presentation of evidence, the trial court granted a directed verdict to the lumber company, foreclosing its lien and granting judgment for $3,935.63 against the Scotts. The trial court also granted a directed verdict to Strickland on the Scotts' claim for fraud and punitive damages. The jury then returned its verdict in favor of Strickland on the Scotts' claims and in favor of the Scotts on Strickland's counterclaim. The Scotts and the Bank appeal.

At the outset, we note that a brief was filed on behalf of the First National Bank of Elk City complaining that the trial court's journal entry failed to properly recognize the priority of its mortgage interest over the lien held by the lumber company. In reviewing the pretrial order filed in this case, it is clear that the parties stipulated that the bank has a valid and first mortgage against the Scotts' real estate which is senior and superior to any lien of any other parties to this action. Accordingly, we direct that the trial court's judgment be modified to reflect the priority of the Bank's interest upon foreclosure.

Scott v. Strickland, District Court No. 82-C-93

The Scotts sought to characterize their suit against Strickland as seeking two distinct claims for relief: the first, breach of contract for failing to complete the construction at the agreed price and the second, a breach of the implied warranty of workmanlike performance.

The common law of this state has recognized that when a person contracts to perform work or to render a service, without express warranty, the law will imply an undertaking or contract on his part to do the job in a workmanlike manner and to exercise reasonable care in doing the work. Gilley v. Farmer, 207 Kan. 536, 542, 485 P.2d 1284 (1971). This implied warranty of workmanlike performance has its theoretical roots in both contract and tort law since an allegation of a breach entails the contention of both a breach of implied contract and the charge of negligence or a failure to exercise reasonable care. Gilley, 207 Kan at 542, 485 P.2d 1284. Therefore, a suit for breach of implied warranty may be premised on either a contract or tort theory of recovery or both. Gilley, 207 Kan. at 542, 485 P.2d 1284.

In this case, the...