Holland Constr. Co. v. Lampson

No. 12676

I N THE SUPREME COURT O THE STATE O M N A A F F OTN

HOLLAND CONSTRUCTION COMPANY,

P l a i n t i f f and A p p e l l a n t ,

-vs - NEIL F. LAMPSON,

Defendant and Respondent.

Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , Honorable A. B. Martin, Judge p r e s i d i n g .

Counsel of Record:

For Appellant :

Evalyn B. Carson argued, B i l l i n g s , Montana

For Respondent :

Moulton, Bellingham, Longo and Mather, B i l l i n g s , Montana Ward Swanser argued, B i l l i n g s , Montana

- - -

Submitted: November 14, 1974

Decided: DEC 1 0 1974 Filed :

M r . J u s t i c e John C. Harrison d e l i v e r e d t h e Opinion of t h e Court.

This i s an appeal from a judgment adverse t o p l a i n t i f f entered i n t h e d i s t r i c t c o u r t , Yellowstone County. The matter was t r i e d by t h e c o u r t s i t t i n g without a jury. P l a i n t i f f Holland Construction Company, Inc. a l l e g e d an indebtedness t o i t by defendant N e i l F. Lampson, Inc. f o r l a b o r , p a r t s and m a t e r i a l s furnished on t h e r e p a i r of equipment owned by Lampson. On appeal, p l a i n t i f f Holland b r i n g s t h r e e i s s u e s :

1. I s t h e r e s u b s t a n t i a l evidence t o support t h e f i n d i n g s of f a c t and conclusions of law of t h e t r i a l judge who found t h a t t h e reasonable value of t h e s e r v i c e s of Holland Construction Co. was $18,292.45? 2. Did t h e t r i a l c o u r t err i n r e f u s i n g t o allow any testimony o f f e r e d by p l a i n t i f f ? 3. Was t h e c o u r t c o r r e c t i n applying t h e r u l e t h a t p l a i n t i f f was e n t i t l e d t o recover only t h e reasonable value of t h e s e r v i c e s performed? Holland a l l e g e d t h a t Lampson was indebted t o Holland f o r $33,557.82. Lampson i n i t s answer admitted c e r t a i n work was per- formed on i t s equipment; t h a t t h e r e was no c o n t r a c t between t h e p a r t i e s f o r t h e work performed; and t h e r e f o r e Holland was e n t i t l e d t o recover only f o r reasonable s e r v i c e s rendered. The t r i a l c o u r t found t h e amount owed Holland t o be $18,292.45. P r i o r t o submission of i t s statement f o r t h e t o t a l c o s t of t h e r e p a i r work t o t h e Lampson crane t h e r e was no d i s c u s s i o n of t h e t o t a l c o s t , o r hourly c o s t f o r t h e work done between t h e p a r t i e s , u n l e s s i t could be s a i d t h a t ~ o l l a n d ' sstatement t h a t t h e shop was It competitive i n t h e area", was a d i s c u s s i o n of c o s t . The work took approximately 30 days of shop work. When t h e statement was submitted t o Lampson, it was considered e x o r b i t a n t and Lampson refused t o pay. Holland a l l e g e s i t i s e n t i t l e d t o recover f o r a l l time spent by i t s s t a f f of t h i r t e e n employees, plus o f f i c e s t a f f , spent on t h e job. Lampson a l l e g e s t h e work could have been performed

i n f a r l e s s t i m e and t h a t Holland i s only e n t i t l e d t o recover f o r t h e reasonable number of hours it would t a k e t o perform t h e job. A t t r i a l Holland introduced time c a r d s t o show t h e number of hours worked by i t s personnel t o e s t a b l i s h what was a reasonable hourly f i g u r e . N o t h e r testimony was introduced t o support t h e o reasonableness of t h e statement submitted. A problem a r o s e as t o t h e t i m e c a r d s i n t h a t they w e r e d i s c r e d i t e d because of t h e manner i n which they were kept and t h e obvious e r r o r s which appeared on t h e f a c e of t h e cards. One d i f f i c u l t y was t h a t due t o t h e inclement weather t h e time clock f r o z e and had t o be r e p a i r e d . Another was t h a t t h e workers were supposed t o keep t h e i r job time a l l o c a t e d t o t h e various jobs they worked on during t h e day, b u t when t h e c a r d s were checked t h e t i m e s w r i t t e n i n on t h e various c a r d s ap- peared t o be i n only one person's handwriting. A s a r e s u l t , the t r i a l c o u r t r e j e c t e d t h e time card evidence a s proof of reason- ableness of t h e t o t a l job c o s t inasmuch a s Holland o f f e r e d no o t h e r explanation f o r t h e time required t o perform t h e work on t h e crane. I n an e f f o r t t o a s c e r t a i n a proper f i g u r e f o r t h e amount owed Holland, t h e c o u r t viewed ~ o l l a n d ' smachine shop o p e r a t i o n ; checked t h e crane i t s e l f t o determine t h e work performed; and, a f t e r s o doing concluded t h e time charged was excessive, although i t accepted ~ o l l a n d ' sf i g u r e s on t h e proper hourly charge. Lampson introduced a s a witness one Draper, i t s foreman, who was present when most of t h e work was done. Draper t e s t i f i e d t h a t 80% of t h e work was done on t h e crane within t e n days, a f t e r about 313 man hours. The b i l l submitted showed 1300 man hours. Lampson a l s o introduced t h e testimony of an e x p e r t , one Peterson from an independent machine shop i n Portland, Oregon, who t e s t i f i e d a s t o , i n h i s opinion,the number of hours reasonable t o do t h e worksre- quired. Lampson introduced o t h e r testimony t o support P e t e r s o n ' s testimony and compared t h e number of hours charged by Holland with hours charged by o t h e r machine shops f o r s i m i l a r work.

Appellant ~olland's first issue questions the sufficiency of the evidence to support the trial court's findings of fact and con- clusions of law. This Court has long held that it will uphold a trial court's findings unless the evidence decidedly and with decisive clarity predominates against them, Christensen v Hunt, . 147 Mont. 484, 414 P.2d 648. Further, we have held that in reviewing the record in the trial court it is not within our province to determine whether we agree with the conclusions reached if they are supported by the evidence. Stromberg & Brown v Seaton Ranch Co., 160 Mont. 293, 502 P.2d 41; Hellickson . v Barrett Mobile Home Transport, Inc., 161 Mont. 455, 507 P.2d . 523; Nissen v. Western Const. Equip. Co., 133 Mont, 143, 320 P. 2d 997, The question here is whether Holland has shown there was an insufficiency of evidence to support the judgment. We find appellant failed to overcome the presumption of the correctness of the trial court's findings (1) by failing to introduce evidence to support the reasonableness of the hours charged to the Lampson job, and (2) that Lampson's witnessesf testimony supports the court ' s findings. As noted heretofore, the validity of the time cards was questioned and at best they only show the number of hours charged to the job and not the hours necessary to accomplish it, Holland totally failed to show by the time cards the number of hours necessary or reasonable to perform the work. The only real evidence before the trial court to assist in determining the reasonable number of hours to do the necessary work was introduced by amps son's witness Peterson, who testified without objection. Peterson was qualified,through years of experience in bidding on similar jobs, to testify on the reason- able number of hours necessary to accomplish the work performed by Holland. His testimony took into consideration the type of work, Holland's equipment, and the new parts used. He inspected the work done on the crane and testified he could have done the

same work, using new parts, for $12,750. However, he testified that in ~olland'sshop, without using new parts used by Holland, and doing the same work that Holland did, that the reasonable number of hours, using ~olland's charges per hour, would bring the amount due to $16,172.66. peterson's testimony was substantiated by Lampson by introducing bills for similar work done in other areas and by foreman Draper's testimony. We find no merit in issue one. Issue two concerns appellant's allegation that the trial court erred in not allowing certain testimony offered by appellant. This refused testimony was evidence attempted to be introduced through two witnesses, Clarence Merry and John Bus tell, concerning the reasonableness of the charge per hour. Merry was the owner of the Yellowstone Hydraulics & Elevator Co., and had been a working machinist for 24 years. Bustell was one of the owners of Billings Machine & Welding Co., and had been a working machinist for over 30 years. When Merry was asked if he had an opinion with regard to the number of hours charged, the testimony was objected to on the grounds a proper foundation was not laid, and none was laid after the objection. However, ~olland'sattorney later clarified what she was trying to get from the witness by these questions: "Q. Your Honor, I believe that Igave the wrong impression. I was only asking him for the hourly rate for that type of work, if you will recall.'' And later: "Q. I realize that you would not know the number of hours and therefore the total bill. I only ask you to testify as to the reasonableness of the charge per hour for the particular operation on the particular piece of equipment.I t The testimony was to go to the hourly rate which was not dis- puted, but could not, as Holland desired, be considered when applied to the hours of the total job. The second witness Bustell was merely asked if he concurred with the testimony given by Merry as to the reasonableness of the hourly rate, and was never asked to comment upon the number of hours it took to do the job.

The t r i a l court had a l r e a d y admitted a l l of ~ o l l a n d ' se x h i b i t s t o support t h e hourly charge and used them i n i t s f i n d i n g s , con- c l u s i o n s and judgment. W f i n d no merit i n a p p e l l a n t ' s i s s u e two. e I s s u e t h r e e considers whether t h e c o u r t was c o r r e c t i n applying t h e r u l e Holland was e n t i t l e d t o recover only the reasonable value of s e r v i c e s performed. Considering t h e f a c t s t h e c o r r e c t and c o n t r o l l i n g law a p p l i c a b l e i s s e c t i o n 13-507, R.C.M. 1947, which provides : "When a c o n t r a c t does n o t determine t h e amount of t h e c o n s i d e r a t i o n , nor t h e method by which i t i s t o be a s c e r t a i n e d , o r when i t leaves t h e amount thereof t o t h e d i s c r e t i o n of an i n t e r e s t e d p a r t y , t h e c o n s i d e r a t i o n must be s o much money a s t h e o b ' e c t of t h e c o n t r a c t i s reasonably worth. (Emp&added). While a case applying t h e above quoted s t a t u t o r y provisions has n o t been previously considered i n t h i s j u r i s d i c t i o n , o t h e r j u r i s d i c t i o n s have a p p l i e d i t . Braden Winch Company v. Surface Equipment Company, 196 Okla. 444, 165 P.2d 640; Hawkins v. Delta Spindle of B l y t h e v i l l e , I n c . , 245 Ark. 830, 434 S.W.2d 825, 827. I n Hawkins, t h e c o u r t noted: ''Where l a b o r o r m a t e r i a l i s furnished by a p a r t y and no p r i c e i s agreed upon, t h e law w i l l imply an agree- ment t o pay what i t i s worth. [Citing c a s e . ] I f a c o n t r a c t makes no statement a s t o t h e p r i c e t o be paid f o r s e r v i c e s , t h e l a w invokes t h e standard of reason- ableness and t h e f a i r value of t h e s e r v i c e s i s recoverable. [ C i t i n g c a s e s and a u t h o r i t y . ] This p r i n c i p l e has been a p p l i e d by t h i s c o u r t i n c a s e s involving p r o f e s s i o n a l s e r v i c e s . [Citing c a s e s . ] There i s no reason why i t should n o t be applied i n t h e circumstances e x i s t i n g here. The burden was upon a p p e l l e e t o show t h a t t h e amount f o r which it sought recovery was t h e f a i r and reasonable value of t h e p a r t s , m a t e r i a l s and l a b o r furnished. It f a i l e d t o do so. I 1 I n Hawkins t h e c o u r t considered t h e f a c t t h a t t h e work was s t r e t c h e d over a t h r e e day period of t i m e when i t could have been done i n one day. The same p r i n c i p l e of law has been covered by 11 contract cases quantum m e r i t " i n a s e r i e s of cases b e f o r e t h i s Court. Higby v. Hooper, 124 Mont. 331, 221 P.2d 1043; Smith v. Gunniss, 115 Mont. 362, 144 P.2d 186. The burden i s upon p l a i n t i f f t o show what i s t h e reasonable value of t h e p a r t s , m a t e r i a l s and l a b o r furnished. Here, Holland r e l i e d s o l e l y on t h e t i m e cards t o e s t a b l i s h t h e reasonableness of

the services. However, t h e r e was s u f f i c i e n t evidence t o r e f u t e t h e i r accuracy, and Holland o f f e r e d no evidence t o j u s t i f y t h e t o t a l hours o r t o show t h a t they were r e q u i r e d t o accomplish t h e work. I n Delaware Engineering Co. v. Pusey & Jones Co., 31 Del. 163, 112 A. 371, t h e c o u r t noted t h a t where one person engages another t o make an a r t i c l e f o r him, and t h e person employed i s t o be paid by t h e hour f o r t h e work, i t i s t h e duty of t h a t person t o f u r n i s h t h e work on t h e a r t i c l e i n a reasonable number of hours, and i f t h e person engaged takes unreasonable time t o complete t h e work, he i s e n t i t l e d t o be compensated f o r only such t i m e a s would reasonably have been r e q u i r e d t o do t h e work. W f i n d no m e r i t i n a p p e l l a n t ' s i s s u e t h r e e . e The judgment of t h e t r i a l c o u r t i s affirmed.

W e Concur: Mr. J u s t i c e Frank I. Haswell took no p a r t i n t h e above Opinion.