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Blohm v. Kagy

OPINION FILED SEPTEMBER 20, 1950

ED BLOHM, APPELLEE,

v.

H. SHANNON KAGY ET AL., APPELLANTS.



Appeal by defendants from the Circuit Court of Marion county; the Hon. WARD P. HOLT, Judge, presiding. Heard in this court at the May term, 1950. Reversed and remanded. Opinion filed September 20, 1950. Released for publication October 20, 1950.

MR. JUSTICE BARDENS DELIVERED THE OPINION OF THE COURT.

On November 29, 1948, Ed Blohm, a contractor, plaintiff appellee, filed an action in the circuit court of Marion county against H. Shannon Kagy and B. Lucille Kagy, defendants appellants, hereinafter referred to as defendants, to foreclose a mechanic's lien. The Marion County Building and Loan Association, a corporation, was made a party defendant because they held a mortgage on the property in question.

In his complaint, the plaintiff alleges: that he entered into a verbal agreement with Kagys to remodel their house for the approximate sum of $6,500; that under the oral agreement old materials obtained from tearing down a portion of the original structure were to be used in remodeling; that later the Kagys insisted on using new materials rather than the old ones; that when advised by the appellee that the estimate of cost would be materially changed, the Kagys notified him to proceed with the work; and that, by doing so, they have waived the original verbal agreement and estimate thereto. The original estimate read as follows:

ESTIMATE

For: S. Kagy Address ................................... Excavating and Concrete ............... 100 Wrecking Old Bld. ..................... 150 Material ............................. 1900 Labor ................................ 2000 Plumbing .............................. 800 Wiring ................................ 150 Painting .............................. 300 Floor Sanding .......................... 75 Plastering and Lath ................... 450 ______________ 5925 10% 592.50 ______________ 6517.50

The complaint also states that the building was remodeled under the verbal agreement together with the changes and extras and the value of the labor and material totaled $9,595.87. This total included the original estimated cost of $6,500, the cost of the labor and material for extras claimed in the sum of $3,058.29, and interest of $37.58. Defendants were given credit in the amount of $4,591.45; consequently, the plaintiff prayed for a lien against the Kagys in the amount of $5,004.42.

By their answer the Kagys denied the material allegations of this complaint and filed a separate answer alleging the formation of a written contract with the appellee to remodel their house for the sum of approximately $6,500 or less. The alleged contract read as follows:

"I agree to supervise and furnish all scaffolding and tools for remodeling home as per plans for Mr. and Mrs. Shannon Kagy.

I will be responsible for all bills for material and labor till job is completed and I also carry Workmen's Compensation.

Cost of remodeling as per plans to be approximately, sixty-five hundred dollars ($6500.00) or less.

Signed: Ed Blohm"

Its execution is not denied but the parties disagree as to its interpretation. The allegations of the answer and the proof showed that the defendants had paid $4,500 to plaintiff and had tendered an additional $2,000 in full payment. This tender was refused by the plaintiff.

The evidence was heard by the court without reference to a master. After trial, a decree was entered in accordance with plaintiff's complaint granting to him a first lien in the sum of $5,004.42 upon the property described. The decree provided that in the event of the failure by the Kagys to pay this sum within thirty days, that the property be sold at public sale in accordance with the statute so providing.

The contract in question consists of the written offer made by the plaintiff Blohm and its explanation as contained in the oral agreements as to plans and specifications, the floor plan, and the estimate. The floor plan and the estimate are important in resolving the ambiguities contained in the offer. The offer was accepted and work was begun under the terms of the contract. The estimate contained a provision for a 10 per cent commission to be paid to the contractor for supervising the construction. The offer stated a maximum cost for the work to be done. Considering all of these elements of the contract, we agree with the contention of the defendants that this contract is a "cost plus" contract with a guaranteed maximum (Wuellner v. Illinois ...


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