Hepding v. Debra Corp.

Barnes, J., delivered the opinion of the Court. This appeal presents to us the question of whether or not the trial court (Mayfield, J.) was clearly in error in declining to disallow certain items claimed by the builder, The Debra Corporation (Debra), appellee in this Court and plaintiff in the trial court, in a suit to enforce a mechanics’ lien asserted by Debra against the land and dwelling of the appellants, James A. Hepding and Ann M. Hepding, his wife, who were defendants below. There are no questions presented in regard to the form of the mechanics’ lien asserted by Debra, the description of the property or the proper giving of the required notice to assert the lien. There is no contention that the work was defective.

In the early part of July 1966, Debra, through its president, Raymond W. Griffith, and the Hepdings entered into an oral contract whereby Debra was to construct a dwelling for the Hepdings on a lot containing 21,600 square feet, known as 3 Allview Drive, Simpsonville, Howard County. Mrs. Hepding had prepared a sketch of the proposed construction which was used by an architect ⁶⁴³ to prepare the plans. There was no total cost figure agreed upon, although Mr. Hepding testified that he did not want the total cost of the dwelling to exceed $30,000. Mr. Griffith testified that the figure of $30,000 was mentioned when the oral contract was made but that the figure was “an estimate.” Debra was to supervise the construction and was to receive a $2,000 “supervision fee” as its profit on the project.

The estimated time for the completion of the work was ninety days. The Hepdings agreed to pay the bills for labor and materials used in the construction when presented to the office of the attorney for the Hepdings. All disbursements were to be made from that office but only upon the prior approval of Mr. Hepding. This method of billing and disbursement continued for a while, but eventually Mr. Hepding authorized the secretary to his counsel to make disbursements without having received or seen any bills.

The secretary testified that the Hepdings placed approximately $37,000 in her hands for disbursement for the construction costs. When approximately $23,000 had been disbursed she told Mr. Griffith that she needed bills to support the previous payments at which time Mr. Griffith had brought her “a stack of bills.” At one time during the construction, Mrs. Hepding had expressed concern in regard to the rising costs of the dwelling, but no maximum cost figure was ever established. The dwelling in question is a stone ranch-type home with three bedrooms, three bathrooms, a living room, dining room, kitchen, den, porch and garage all on the first floor, with a family room, laundry, powder room, bar, utility and storage rooms in the basement or lower floor, part of which is unexcavated. The photographs of the completed home indicate that it is well-built, with a modern kitchen, and that it generally has superior appointments for this type of house.

The testimony indicated that from time to time there were changes in the plans for certain interior construction which increased the cost of construction and delayed the completion of the work. ⁶⁴⁴ Construction began on July 21, 1966 and was not completed until some time in April of 1967, a period of approximately nine months instead of the estimated three months. The final bill submitted by Debra to the Hepdings on May 1,1967, was as follows: “Balance brought forward ................ $22,196.81 (total of invoices presented to Mr. and Mrs. Hepding for payment prior to presentation of the final bill) Materials and Miscellaneous ............ $ 8,269.09 (all presented for the first time in the final bill) Labor .................................................. $14,076.60 $44,542.50 Payments received............................ —37,399.51 Sub-balance ........................................ $ 7,142.99 Bookkeeping Expenses .................... 450.00 Profit per agreement ........................ 2,000.00 Charge for additions and changes.... 1,000.00 Balance due ........................................ $10,592.99” The mechanics’ lien asserted by Debra is for the claimed balance of $10,592.99. Included in the item of $8,269.09 marked “Materials and Miscellaneous” are the following charges: 1. Rental of Trucks, Loaders, Backhoes $ 3,277.00 2.

Lee Rose and Truck (“hauling”) 247.00 3. Lee Rose (Supervision) 800.00 The item of $14,076.60 for labor includes the charges: 1. Carpenters (Rough and Finish) $12,639.10 2. Common Labor 1,257.50 3.

Sam Moore, additional job 180.00 Total.................... $14,076.60 ⁶⁴⁵ In explanation of the first mentioned charge for carpenter labor of $12,939.10, Mr. Griffith itemized it as made up of the labor of three carpenters and an item of carpentry work of $492.00 for a subcontractor, B & I Construction Company, as follows: 1. James Barrick (9811/2 hrs. at $4.50 an hour) $4,416.75 2. Frank Cameron (847 hrs. at $2.50 an hour) 2,117.50 3. Jack Johnson (885 hrs. at $3.00 an hour) 2,655.00 4.

Subcontractors 492.00 Total............... $9,681.25 The total given by Mr. Griffith was $9,680.17, representing a slight error in calculation. The correct difference between the $12,639.10 figure given for carpenter labor and the amount of $9,681.25 is $2,957.85. Mr. Griffith indicated that the difference was $2,958.93 (reflecting the error in addition mentioned). Mr. Griffith acknowledged that this was an overcharge.

His testimony was: “Q. So there’s twenty-nine hundred and fifty-eight dollars and ninety-three cents ($2958.-93) in carpenters, assuming what you say so far is correct, that that would be out. Isn’t that correct? “A. That’s right.” Jacob Schwartz, a part time accountant, who made up the payroll records, including the withholding tax records, for Debra, testified that the information in regard to the time spent by the carpenters on the Hep ding job as well as the amount of time for the equipment was telephoned in to him at the end of each week by Mr. Bar-rick, or in some instances by Lee Rose. Based on that in ⁶⁴⁶ formation Mr. Schwartz issued the pay checks and made up the payroll records. Mr. Barrick, called by the Hepdings as a witness, testified that he did the principal part of the carpentry work on the Hepding dwelling and he kept a daily record of the time he had spent working on the Hepding dwelling.

His records indicated that he had spent 720% hours on the job at $4.50 an hour or a total of $3,242.25 (versus 981% hours and a charge of $4,416.75 claimed by Debra). He also testified that he was on the job every day from November 1966 to March 1967 and that Mr. Johnson during that period only spent approximately two weeks on the job. Frank Patrick Cameron, a carpenter who worked on the Hepding job, called as a witness by the Hepdings, also kept a daily record of the time he spent working on the Hepding job. His total number of hours was 909% hours at $2.50 an hour, a total of $2,273.75 (versus 847 hours and a total of $2,117.50 claimed by Debra) or $156.25 more than the amount claimed by Debra.

Both Mr. Barrick and Mr. Cameron testified to various removals of materials from the Hepding job during the course of construction but their testimony was vague in many instances in this regard as they made no memoranda indicating the removals and there was no evidence to indicate conclusively that if the materials were removed, a proper accounting had not been made by Debra for such removed materials. There was also evidence that both Mr. Barrick and Mr. Cameron had had difficulties with Mr. Griffith which might indicate some hostility on their part toward him. The trial judge, however, accepted their testimony in regard to the numbers of hours worked and deducted the amount of $1,173.92 (the difference between the Debra claim and the Barrick figure, .but added the amount of $156.25, the difference between the Cameron figure and the lesser amount claimed by Debra. The trial court men ⁶⁴⁷ tioned in its opinion that both Mr. Barrick and Mr. Cameron had testified that Mr. Johnson had only worked approximately two weeks while Debra claimed $2,175.00 for the Johnson work which “would represent considerably more time than the approximately two weeks referred to by the two witnesses.” The trial court, however, did not deduct any part of the Johnson time from the Debra claim, although, as indicated, it did accept the testimony of Barrick and Cameron in regard to their own time sheets on the job.

Mr. Hepding testified that the total cost of the house, not including the amount involved in this appeal and excluding the cost of the lot, was approximately $70,000.00. In connection with the charge for trucks, loaders, and backhoe in the amount of $3,267.00 (which Mr. Griffith had broken down as a backhoe, 118 hours at $12.00 an hour, $1,416.00; front-end loader, 127% hours at $12.00 an hour, $1,5J3.00 — actually $1,533.00 — and trucks $318.-00, totalling $3,277.00 according to his calculations) Mr. Hepding testified that he visited the site of the work almost every day and that he had never observed the equipment working on rainy days. He stated that at various times the equipment was taken away and then brought back to the site where it was left sitting, without use. Local climatological reports of precipitation in the months of July, 1966 through March, 1967 were introduced into evidence.

These show that during this period there were eleven days showing precipitation. One of these days, February 18, 1967, indicates .17 inches of rain and 2.3 inches of snow and sleet. On this same day there was a backhoe charge of eight hours. Including this charge and the other charges for backhoe on the days on which there was precipitation, the total is for 35% hours of backhoe time.

Also on the same days 26% hours of loader time were charged, a total of 61% hours of time for these two pieces of equipment on the days on which there was precipitation. As this time was charged for on the basis of $12.00 an hour, if credit were given for the 61% hours at that ⁶⁴⁸ price, a credit to the Hepdings of $741.00 would be granted, but the trial court, in its written opinion, did not consider this testimony or give any credit to the Hep-dings based upon it. Jesse Steiner, a professional civil engineer and an expert in construction cost analysis, testified for the Hep-dings. He graduated from the College of the City of New York in 1937, has done construction estimating for some of the larger companies in the City of New York and in Washington, D. C. He listed a number of construction companies for which he has done construction estimating as well as two municipal governments for which he has done similar work.

He has testified as an expert in the Maryland Courts in Baltimore City and Prince George’s County as well as in New York City. His qualifications as an expert are conceded by Debra. Mr. Steiner testified that he made two visits to the site and spent approximately eight hours in making his inspection of the completed house. He gave a detailed account of the materials required and used as well as the number of hours and cost of the required labor.

His testimony as well as his letter of September 18, 1967 to the Hepdings and supplementary exhibit, gave