Welter v. Heer

• Decision Date: 10 November 1970
• Docket Number: No. 53932,53932
• Citation: 181 N.W.2d 134
• Parties: Arnold J. WELTER and John J. Welter, d/b/a John P. Welter Sons, Appellees, v. Bert HEER and Ruth Heer, husband and wife, Appellants, and Dubuque Bank and Trust Company, Dubuque, Iowa, Defendant.
• Court: Iowa Supreme Court

Page 134

181 N.W.2d 134

Arnold J. WELTER and John J. Welter, d/b/a John P. Welter Sons, Appellees, v. Bert HEER and Ruth Heer, husband and wife, Appellants and Dubuque Bank and Trust Company, Dubuque, Iowa, Defendant.

No. 53932.

Supreme Court of Iowa.

Nov. 10, 1970.

Hughes & McKay, Dubuque, for appellants.

O'Connor, Thomas, Wright, Hammer & Bertsch, Dubuque, for appellees.

LeGRAND, Justice.

This is a suit in equity to foreclose a mechanic's lien for work performed in improving the residence of Bert Heer and Ruth Heer in Dubuque County, Iowa. The trial court entered judgment in favor of plaintiffs for $4403.46 and established that amount as a lien against the property in question. Mr. and Mrs. Heer appeal, and we affirm.

The Dubuque Bank and Trust Company was made a party defendant because it held a mortgage on the property. The trial court's decree held the mechanic's lien to be superior to the bank's mortgage. The bank has not appealed, and our consideration here is limited to the controversy between plaintiffs and the Heers, to whom we refer hereafter as the defendants.

Prior to the events giving rise to this dispute, defendants' home was a story-and-a-half frame dwelling without a basement. It had three rooms downstairs and one upstairs. Defendants desired to enlarge and improve their property and negotiated with plaintiffs, who were partners operating a contracting business, toward that end. These negotiations extended over two or three meetings. On at least one occasion the plaintiff, Arnold J. Welter, visited the premises while Bert Heer pointed out generally what he wanted done.

This included raising the house, which was then sitting on timbers; excavating for a basement and installing a basement under the raised house; putting an extension on the rear of the building; putting a dormer on the left side of the house; installing a new bathroom upstairs and enlarging the half-a-story area there; utilizing part of the present kitchen for a downstairs bathroom and remodeling the remainder of the kitchen; putting a new roof on the main structure; and changing the location of several windows and doors in various parts of the house.

It is conceded the parties entered into an oral contract for the performance of this work. Plaintiffs allege such an agreement in Division I of their petition; defendants admit it in their answer. The parties are bound by these pleadings. Grantham v. Potthoff-Rosene Co., 257 Iowa 224, 230, 131 N.W.2d 256, 259; Johnson v. Scott, 258 Iowa 1267, 1272, 142 N.W.2d 460, 463. Furthermore defendants admitted such an arrangement in their testimony, and the trial court quite properly found an oral contract existed.

The difficulty arises because this oral agreement left undecided many of the terms under which that work was to be performed. Nothing was reduced to writing. There were no plans or specifications. The type, kind, and quality of materials were left open. New rooms were provided for without discussion as to size. The per hour charge for labor was undermined. As the case is presented on this appeal, we must simply decide as best we can from the record the basis upon which the plaintiffs should be paid for the work they admittedly did.

We have held on several occasions under similar circumstances that a contract may be express as to some terms and implied as to others. It cannot be both as to the Same terms. Here the parties agreed that certain work should be done, but settled little else. If it was a time-and-material contract without agreement as to rate of compensation, the law implies a promise to pay the reasonable value of the services rendered. Maasdam v. Estate of Maasdam, 237 Iowa 877, 887, 24 N.W.2d 316, 321; Sitzler v. Peck (Iowa), 162 N.W.2d 449, 451; Carlson v. Maughmer (Iowa), 168 N.W.2d 802, 803.

Before work was started plaintiffs refused to take the job on a contract basis and the parties agreed on a time-and-material job. This much is undisputed, and herein lies the heart of this lawsuit. Defendatns insist plaintiffs agreed to do the work (except the garage and porch addition) on a time-and-material basis with a ceiling of $9500.00, 'a little more, a little less.' Defendants, on the other hand, say the job was to be a straight time-and-material and that the $9500.00 figure was only a 'rough estimate.' When defendants decided later to add a garage and porch, the $9500.00 total was raised to $12,500.00; but this does not help the basic difference between the parties. The quarrel is still over the meaning of the oral agreement they admit was made.

Work was started on August 27, 1966. Plaintiffs themselves did most of it. Some was put out to subcontractors, and plaintiffs also used two of their own employees for part of the job. The project continued until February 14, 1967, when defendants discharged plaintiffs under circumstances we discuss later. At that time it is agreed the remodeling was not finished, although there is dispute as to how much remained to be done.

Plaintiffs had previously submitted bills to defendants for $9001.26 for work completed to November 1, 1966. Work was then still going on and defendants were there to observe its day-to-day progress. On or about February 14, 1967, plaintiffs presented a bill for $4403.46. At the time defendants made no protest and agreed to pay that amount as soon as possible. However, defendants testified they were 'pretty shook up' when this bill was presented. Upon reflection they decided it was excessive, refused to pay, and ordered the work stopped. The situation on February 14, 1967, then, was simply that defendants found themselves obligated to pay $13,404.72 ($9001.26 already paid plus a bill for $4403.46) for an unfinished job which they claim was to have cost only $12,500.00 when completed.

Even though several other objections are raised by defendants, it is apparent their principal complaint centers around the fact their house is still unfinished. The record shows it will cost between $2000.00 and $4000.00 to complete the job.

Defendants rely on the following propositions for reversal: (1) error by the trial court in finding the oral agreement was a straight time-and-material contract; (2) error by the trial court in finding the plaintiffs had proven the full sum they demanded was, in fact, due; and (3) error by the trial court in several material findings of fact prejudicial to defendants.

I. We dispose of the third proposition summarily by stating we have examined the record and find no merit in...