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Hemenover v. Depatis

OPINION FILED JULY 22, 1980.

GEORGE A. HEMENOVER, D/B/A GEORGE A. HEMENOVER, GENERAL CONTRACTOR, PLAINTIFF-APPELLEE,

v.

PAUL F. DEPATIS ET AL., DEFENDANTS-APPELLANTS. — BEAVERVILLE GRAIN AND LUMBER COMPANY, PLAINTIFF-APPELLEE,

v.

PAUL F. DEPATIS ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Iroquois County; the Hon. ROBERT L. DANNEHL, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is a consolidated appeal from two money judgments entered by the circuit court of Iroquois County after a bench trial. Judgment was entered in favor of George Hemenover, d/b/a George Hemenover, General Contractor, in the amount of $9,934.60 and Beaverville Grain and Lumber Company in the amount of $8,713.67 on their actions under the Mechanic's Lien Act.

During November 1976, homeowner DePatis asked Curt Orr, manager of Beaverville, for an estimate as to the cost of building an addition to the DePatis home. Orr then conferred with contractor Hemenover about supplying labor. Both Orr and Hemenover went to the DePatis home to discuss the work to be done. The original proposal was to include a 30-foot by 34-foot addition with a kitchen, new bathroom, new living room, new bedroom, enlargement of an existing bedroom, entryway to the basement, certain remodeling of the existing house, and the digging of a basement and the pouring of the basement floors.

Later that month Orr and Hemenover told DePatis they would do the work for $27,700. DePatis alleges this was a firm offer with a ten percent leeway. Hemenover and Beaverville allege it was just an estimate.

After the work began DePatis asked for an estimate for a garage and breezeway. Hemenover quoted a price of $7,000, and DePatis accepted that figure. While work was being done on the addition, several changes from the original proposal were agreed to by DePatis and Hemenover. At some time during these discussions Hemenover told DePatis that it would be to DePatis' advantage to pay for the work on a time and material basis rather than a flat fee basis, and Hemenover alleges that DePatis agreed; however, DePatis denies the existence of such an agreement. DePatis did agree to do certain work himself in order to reduce the cost of labor.

In April 1977, DePatis paid Hemenover $6,000, and in August 1977, he paid him $12,000. In June 1977, DePatis paid Beaverville $15,000. After the August 1977 payment to Hemenover, DePatis received bills totaling $4,315 from subcontractors, which he paid.

In February 1978, four or five months after the major part of the work had been completed, Hemenover and Orr asked DePatis for $18,648.27. DePatis refused to pay any further amounts because it was his position that they had been paid in full.

Hemenover and Beaverville then brought separate actions under the Mechanic's Lien Act for building materials and labor provided in the construction of the addition. The actions were consolidated for bench trial.

At trial Hemenover testified regarding his time records and the work done by his employees. Hemenover posted the hours in the record book every morning. He knew how many hours were worked because he went out to every job every day. He did not stay on the job site to assure that his men worked their assigned hours; however, he assumed that they worked the assigned hours. There were entries for other jobs in the record book. The contracts for those jobs required payment of a fixed price rather than an hourly rate. Entries reflected Hemenover's attempt to determine the accuracy of his bid on the fixed price job. The trial court limited cross-examination about these entries because they were irrelevant.

Hemenover also testified that he was the supervisor of the project and ordered all supplies, except some paint, from Beaverville. He made all the decisions on the project and had the authority to act on Beaverville's behalf.

Donald Hemenover testified that although the roofs and floors of the old house and new addition were to be flush, they were not because an 8 x 8 beam in the old house was not level. DePatis was charged for the time and material used to correct the 2 1/2- to 3-inch difference. On cross-examination Hemenover admitted that although he had been on the job site and inspected the construction, he had been told about the 8 x 8 beam and had not inspected it himself. DePatis moved to strike the testimony as hearsay. The trial court ruled that although the testimony was hearsay it had probative value and was admissible.

Curtis Orr testified that when materials are delivered by Beaverville, a counter ticket is written. The counter tickets were posted to a daily journal, a customer account column, and to the customer ledger. Orr could not tell from the invoices who delivered the materials or who ordered them. He could recall that orders were placed by Hemenover, his employees, and DePatis. There were no delivery receipts, and none of the invoices were signed or receipted. Orr further testified that Beaverville did not deliver goods to Hemenover for use on other jobs while Hemenover was working on the DePatis job. Orr also testified that the figure quoted to DePatis was just an estimate, and the price of the addition was to be determined on a time and material basis.

Orr testified that Hemenover had no authority to act on Beaverville's behalf in submitting proposals to DePatis. Orr admitted that in his pretrial deposition he stated Hemenover had the authority to make a proposal to DePatis which would bind Beaverville. The trial court refused to admit the prior statement into evidence as an admission by Orr but did permit the use of the statement for impeachment.

Hemenover and Beaverville also introduced testimony from another contractor and building material supplier that the prices charged by them were the reasonable market value for the ...


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