Easter v. Humphrey

Hammond, J., delivered the opinion of the Court. This appeal challenges determinations of fact by the trial court, sitting without a jury, which resulted in a judgment for the plaintiff, a builder, in his suit to recover for the cost of labor and materials not included in a contract to build an addition to a house. The appellant, the home owner, tells us that there should have been no recovery because there was an accord and satisfaction between the parties and, in the alternative, no proper evidence as to the value of the extra labor and materials and, finally, claims that in any event the amount allowed by the trial court was excessive by several hundred dollars. The case turned below, as it does here, entirely on questions of fact.

Since the matter was tried by the court without a jury, the provisions of the General Rules of Practice and Procedure, Part Three, III, Rule 9 (c), ²³⁴ apply, and the judgment will not be set aside on the evidence “unless clearly erroneous”; in determining whether there was error, the Court must have always in mind the opportunity of the trial court to judge the credibility of the witnesses. We have measured the evidence by this yardstick and the measurement calls for affirmance. The parties entered into a written contract under which the appellee was to build an addition to the house of the appellant, according to plans and specifications, for a named sum. In the course of the work, extras were ordered by the home owner and in a number of instances changes were made in the plans and specifications or a substitution of material called for.

There were complaints by the owner as to the quality of some of the work, particularly the painting in several rooms. Finally, the work was substantially completed and the builder was anxious to be paid the balance due on the contract price. The money was in a building association and to obtain it, it was necessary to have a release of liens. He requested the owner to sign such a release.

The parties differ as to what occurred thereafter. The owner’s version is that he would not sign the release until the builder agreed to make no charge for the extra work and labor and to allow as credits on the contract price the cost of items that he himself had paid for or provided. He says further that the builder acceded to these demands and on a named date, paid him $265.41, constituting, in his words: “* * * an adjustment of cash due me for material and services I had furnished towards the project * * *.” Of this sum, $135.00 represented the cost of repainting two rooms and was allowed by the builder so that the owner could pay direct for extra coats of paint. The builder’s version is that he agreed to pay the $265.41, including the $135.00 for the extra coats of paint, in order to obtain the release of liens, but that it was understood and agreed that the payment settled only the differences of opinion between the parties as ²³⁵ to the performance of, and payment for, the original contract, and did not satisfy the claims for extra work and labor which were left in abeyance.

The trial court found that the builder’s