Strand v. Courier

• Decision Date: 24 March 1988
• Docket Number: No. 15801,15801
• Citation: 434 N.W.2d 60
• Parties: Dean STRAND and Tory Kaufman, Plaintiffs and Appellees, v. Carol COURIER, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 60

434 N.W.2d 60

Dean STRAND and Tory Kaufman, Plaintiffs and Appellees, v. Carol COURIER, Defendant and Appellant.

No. 15801.

Supreme Court of South Dakota.

Considered on Briefs March 24, 1988.

Decided Dec. 14, 1988.

Patrick W. Kiner, Mitchell, for plaintiffs and appellees.

John R. Steele of Steele Law Office, Plankinton, for defendant and appellant.

EVANS, Circuit Judge.

Defendant Carol Courier (Courier) appeals from a judgment entered against her following a jury verdict granting plaintiff Tory Kaufman (Kaufman) $2,708.40 as the balance due on a remodeling project. The trial court awarded prejudgment interest and costs. We affirm the jury award and the prejudgment interest, but reverse and remand as to costs.

FACTS

Dean Strand (Strand) worked full-time at the Mitchell Fire Department and worked part-time in his own construction business. Strand was a friend of Courier and her family. He had helped Courier's brother construct a pole shed which contained an apartment where Courier lived. Courier wanted to add a second apartment to the pole shed so she could assist her mother with the care of her father. Courier discussed remodeling with Strand periodically for nine months to one year before construction began.

In late October 1984, the suspended ceiling in Courier's apartment collapsed. Courier hired Strand to repair it. During the ceiling repair, Strand and Courier talked on two or three more occasions about remodeling the new apartment. Eventually they agreed upon a remodeling plan. Strand wrote certain cost figures for the project on what became a kitchen wall that was later painted. Strand recalled the estimate to be:

                Materials   $1,250.00
                Electrical     750.00
                Plumbing       750.00
                Labor        2,000.00
                Cupboards      750.00
                            ---------
                     Total  $5,500.00
                

Courier recalled the estimate to be in the range of $4,500.00 to $5,000.00, but there was a margin left for unseen things. She asserted, however, that it was firm that it would be less than $5,000.00. She recalled the estimate to be:

                Materials   $1,200.00
                Electrical     500.00
                Plumbing       750.00
                Labor        1,000.00
                            ---------
                     Total  $3,450.00
                

Courier also testified that Strand was to advise her at any time he thought the job would be going over the $5,000.00 cap she had set. Strand never did so.

Between the negotiations with Courier and the remodeling project actually starting, Strand sold his business to Kaufman. Kaufman was also a full-time fireman and an employee of Strand. Strand testified he agreed to work for Kaufman for one year and to help with the remodeling projects.

Courier claims she had no knowledge of Kaufman's involvement in the job. Strand and Kaufman testified Courier knew of this arrangement throughout the course of the remodeling. While Kaufman did perform work on the project, Strand continued to supervise the work and discuss any changes made with Courier.

Upon completion of the project, Kaufman presented a bill to Courier which, after revisions including the supplier's receipts and all credit, totaled $5,086.21. This amount excluded $500.00 previously paid Strand, $1,103.00 for electrical work and $1,500.00 for plumbing. This made the total project cost $8,119.21. Courier told Kaufman that she did not hire him and the remodeling project far exceeded Strand's bid of $4,500.00 to $5,000.00. She refused to pay. Courier proceeded to pay many of the materialmen directly.

Strand and Kaufman's complaint sought a $2,787.50 judgment. Courier counterclaimed for $2,392.45 for work negligently performed, work omitted and reimbursement for overpayment of the contract price. Strand testified he had no money due under the contract and that the money due would be payable to Kaufman. The trial court granted Courier's motion for a directed verdict against Strand. Strand and Kaufman's trial exhibit number 2 shows $2,708.40 as the balance due, which was the amount of the jury verdict. Courier raises five issues.

ISSUE ONE

WHETHER THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE VERDICT

OF THE JURY IN FAVOR OF KAUFMAN.

Courier cites no authority for this contention but argues that Kaufman failed to meet the burden imposed by the trial court's instructions.

This court has held on many occasions that authority must be cited to afford a meaningful review of the issues on appeal. State v. LaCroix, 423 N.W.2d 169 (S.D.1988); State v. Banks, 387 N.W.2d 19 (S.D.1986); State v. Shull, 331 N.W.2d 284 (S.D.1983). Even if authority had been cited, we would still hold that sufficient evidence exists to support the jury verdict.

Upon review, the evidence and inferences therefrom are viewed in a light most favorable to uphold the verdict. A verdict must be upheld if there is competent and substantial evidence to support it. Ebert v. Fort Pierre Moose Lodge No. 1813, 312 N.W.2d 119 (S.D.1981). Viewing the evidence most favorable to the appellees, a contract existed for a remodeling project. Strand bid the project but Kaufman was the actual contractor. Courier knew of this arrangement. Strand continued to supervise the project and Courier received the benefit of all his services, personal trust and confidence. Additional items of material and labor were added by agreement of Strand and Courier during the work on the remodeling. The jury could reasonably conclude that there was no firm bid, or, that there was a firm bid modified by subsequent agreement of the parties. Courier selected different cupboards, which cost nearly $1,500.00 rather than $750.00. She hired the plumber and knew it would cost $1,500.00 rather than $750.00. Other additions and changes were made by agreement of the parties. The verdict was adequately supported by the evidence.

ISSUE TWO

WHETHER THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE

JURY ON THE LAW OF UNDISCLOSED AGENCY.

Courier proposed the following jury instruction:

If a contract is made by an agent without disclosing that he is acting as agent for another, his principal, and the contract involves elements of personal trust and confidence as a consideration moving from the agent, contracting in his own name, to the other party to the contract, the principal cannot, against resistance of the other party, enforce the contract.

An intention to make the personality of the parties an essential of material part of the contract may be inferred from the circumstances of the negotiation and entry into the contract.

Courier's version of the facts presented at trial show that Strand entered into the remodeling contract with her while Strand was acting as agent for Kaufman, an undisclosed principal.

A person who makes a contract with an agent of an undisclosed principal, intended by the agent to be on account of his principal and within the power of such agent to bind his principal, is liable to the principal as if the principal himself had made the contract with him, unless he is excluded by the form or terms of the contract, unless his existence is fraudulently concealed or unless there is set-off or a similar defense against the agent.

Restatement (Second) of Agency Sec. 302 (1958).

An undisclosed principal upon whose account an agent has acted within his power to bind the principal in making a contract, unless he is excluded by its terms, can require the other party to render performance to him instead of the agent, except in the case of personal services or where performance to the principal would subject the other to a substantially different liability from that contemplated.

Restatement (Second) of Agency Sec. 310 (1958).

Courier's proposed instruction is almost identical to the statement contained in 3 Am.Jur.2d Agency Sec. 330 (1986) ¹ except it leaves out the phrase "while the contract remains executory." Courier's proposed instruction may have been appropriate if the contract had not been completed and Kaufman sought to enforce the contract. But here the contract was fully executed. Courier had the benefit of Strand's personal trust and confidence in the completion of the contract and, in fact, made no complaint before its completion. Whether the agency was disclosed or undisclosed became irrelevant and the instruction was properly refused.

ISSUE THREE

WHETHER KAUFMAN IS ENTITLED TO PREJUDGMENT INTEREST AGAINST COURIER.

The trial court judgment awarded Kaufman prejudgment interest at the rate of 18% per annum on the sum of $2,708.45 from February 1, 1985. Courier claims the damages were neither certain nor capable of being made certain by calculation as required by SDCL 21-1-11. We disagree.

The fact that a claim is disputed does not defeat the allowance of interest. Barton Masonry, Inc., v. Varilek, 375 N.W.2d 200 (S.D.1985). SDCL 21-1-11 allows prejudgment interest on liquidated and contractual claims. Winterton v. Elverson, 389 N.W.2d 633 (S.D.1986). The prevailing party is entitled to prejudgment interest only if damages are certain or capable of being made certain by calculation. First Nat. Bank of Minneapolis v. Kehn Ranch, Inc., 394 N.W.2d 709 (S.D.1986); Twin City Testing and Engineering Lab, Inc., v. Smith, 393 N.W.2d 456 (S.D.1986).

The damages in this lawsuit are capable of being made certain by calculation even though there was no exact hourly amount established for labor when the parties entered into the contract. The bills did show the hours worked and the hourly rate charged. There was no claim that the hourly rate was not the customary rate charged other customers. The evidence indicates that all materials were at Kaufman's cost. The amount due was easily determined from hours worked times the hourly rate and adding the costs of materials. Exhibit 2 was the final bill that had been sent to Courier. The amount due under this bill had been changed because Courier paid suppliers directly rather than paying Kaufman. While there were some minor inconsistencies in the amounts owed, the jury determined that the final billing was the correct amount. We cannot say...