Sitzler v. Peck

• Decision Date: 12 November 1968
• Docket Number: No. 53075,53075
• Citation: 162 N.W.2d 449
• Court: Iowa Supreme Court
• Parties: Walt SITZLER, also known as Walter Sitzler, Appellant, v. William Eugene PECK, Sandra L. Peck, H. A. Wolf Company, Inc., Fairlane Corporation of Omaha, Nebraska, Fairlane Land Development Company, B. H. Buras, and Lincoln Life and Casualty Company, Appellees.

Page 449

162 N.W.2d 449

Walt SITZLER, also known as Walter Sitzler, Appellant, v. William Eugene PECK, Sandra L. Peck, H. A. Wolf Company, Inc., Fairlane Corporation of Omaha, Nebraska, Fairlane Land Development Company, B. H. Buras, and Lincoln Life and Casualty Company, Appellees.

No. 53075.

Supreme Court of Iowa.

Nov. 12, 1968.

Pogge, Root & Payne, Council Bluffs, for appellant.

Connolly & Connolly, Council Bluffs, for appellees Fairlane Corp. of Omaha, Nebraska, Fairlane Land Development Co., and B. H. Buras.

Porter, Heithoff & Pratt, Council Bluffs, for appellees H. A. Wolf Co., Inc., and Lincoln Life and Cas. Co.

LARSON, Justice.

In this equity suit under chapter 572 of the 1966 Code of Iowa, plaintiff, a carpenter, sought to foreclose a mechanic's lien for material and labor furnished for the construction of a prefabricated house for defendants Fairlane Land Development Company, a land developer, Fairlane Corporation of Omaha, a building corporation, and B. H. Buras, their president in Carter Lake, Pottawattamie County, Iowa. Other defendants include H. A. Wolf Company, Inc., mortgagee, William Eugene Peck and Sandra L. Peck, who purchased the house, and Lincoln Life and Casualty Company, assignee of a Peck mortgage to Wolf Company.

Plaintiff's petition alleged inter alia an oral contract between himself and the Fairlane corporations and their officer Buras for the construction of a house at 1213 Lynwood Drive in Carter Lake, Iowa, the fair and reasonable value of the furnished labor and materials, the sum he had been paid, and the balance due. A later amendment reduced the balance to $3,138.00. At the close of plaintiff's evidence defendants' motion to dismiss was sustained by the court. Plaintiff appeals. We reverse.

The issue raised by this appeal is whether defendants' motion to dismiss plaintiff's petition, made at the close of plaintiff's evidence, should have been overruled and judgment entered as prayed when defendants failed to present any evidence in the matter.

Appellant contends the uncontradicted evidence sustains the contractual allegations in his petition, that under his pleadings he can prove the reasonable value of his services, the same being on a point not covered by the express contract, and that the evidence established the fair and reasonable value of those services.

Appellees contend plaintiff alleged an express oral contract not sufficiently proved, that his evidence related to a basis of recovery other than that alleged, and that there was a fatal variance between his pleading and proof which required the dismissal of his suit.

From the record we learn plaintiff's petition, filed March 2, 1967, alleged that 'on or about 23 August, 1965, this plaintiff entered into an oral contract to construct a dwelling house on the aforesaid mentioned real estate with (the named defendants) * * * whereby plaintiff would perform the necessary labor and purchase and install any materials necessary to construct and complete such dwelling * * * according to Federal Housing Administration requirements and specifications.' It further alleged plaintiff did perform 'in a good and workmanlike manner' the services contemplated and completed on May 25, 1966. There is no allegation as to the sum or sums plaintiff was to be paid for these services, but it is alleged 'that the fair and reasonable value for such labor and material as enumerated * * * amounts to $7,093.00; that this plaintiff has been paid the sum of $3,750.00; that the reasonable value of balance of the labor and materials due this plaintiff is $3,343.00.'

Plaintiff testified: 'I did not have a written contract on the home at 1213 Lynwood, which is involved in this lawsuit.' He said: 'I was notified to commence work on this home by the Fairlane Corporation office two days before we started working on the foundation.' He related the understanding as to the labor and material he was to furnish and that which was to be furnished by the defendants. He testified as to several other houses he had built under this arrangement and told of the extras required on this job, including an extra half bath, gutters, insulation, and a large front stoop. He denied there was any set amount for his services expressed and testified his costs to build this house were determined on a square foot basis at.$7.00 per square foot, which was the fair and reasonable value thereof. He testified there were 884 square feet in this home and that the reasonable value of the extras furnished was $700.00.

At the close of plaintiff's evidence defendants moved to dismiss, for the reason that (1) the proof failed to sustain the allegations of plaintiff's petition, (2) the proof did not establish a cause of action against the defendants, and (3) plaintiff pleaded an express contract and placed his proof on quantum meruit, resulting in a fatal variance between pleading and proof. The trial court was under the impression that plaintiff improperly alleged both an express and an implied contract in one count, and that defendants' objection to plaintiff's evidence of reasonable value was good because it amounted to a variance between pleading and proof. It, therefore, sustained the motion to dismiss. As heretofore indicated, under this record we cannot agree.

The question as to whether plaintiff alleged a specific oral agreement to furnish certain labor and material for this project must be answered in the affirmative. The question as to whether he alleged the express agreement included the sum or sums he was to receive for that service must be answered in the negative. Thus, the nub of this controversy is whether one who alleges a specific agreement as to services to be rendered and fails to allege any agreement as to the amount of compensation he shall receive may recover the value of those services by producing evidence of the reasonable value thereof.

I. It is well settled that there cannot be an express contract and an implied one relating to the same subject matter and covering All its terms. Maasdam v. Estate of Maasdam, 237 Iowa 877, 887, 24 N.W.2d 316, 321; Lautenbach v. Meredith, 240 Iowa 166, 168, 35 N.W.2d 870, 871.

We have held many times that one who pleads an express oral contract alone cannot ordinarily recover upon an implied contract or quantum meruit. Guldberg v. Greenfield, 259 Iowa 873, 878, 146 N.W.2d 298, 301, and citations; In re Estate of Hill, 230 Iowa 189, 200, 297 N.W. 278, 283; Hunt v. Tuttle, 125 Iowa 676, 101 N.W. 509.

However, it is equally well settled that there may be an implied contract on a point not covered by an express one. Lautenbach v. Meredith, supra; Maasdam v. Estate of Maasdam, supra; In re Estate of Hill, supra.

It often happens that there is an express contract as to the employment, but no agreement as to the amount of compensation, in which case the law implies a promise to pay reasonable compensation. In re Estate of Oldfield, 158 Iowa 98, 138 N.W. 846; Scott v. Wilson, 185 Iowa 464, 468, 170 N.W. 761, 762. Also see Finkle v. Finkle, 239 Iowa 783, 32 N.W.2d 807.

In re Estate of Hill, supra, 230 Iowa 189, at 201, 297 N.W. 278, at 283, involved a claimed express contract for services to be rendered decedent during her lifetime, with no agreement as to compensation for those services. It was held the pleading alleged an express contract, but there was no fatal variance between pleading and proof when evidence of the value of the...