Apple v. Steakley

1923 OK 744, 219 P. 294, 92 Okla. 274, 1923 Okla. LEXIS 864

• Court: Supreme Court of Oklahoma
• Decided: October 9, 1923
• Docket: 11697
• Status: Published

Opinion

Opinion by

MAXEY, O.

The issue between the two parties is narrowed down to the items of whether the plaintiff complied with the terms in the contract in not putting in the connecting door. The reason for not putting in the connecting door was testified to by the plaintiff, who claimed that the connecting door was not put in for the reason that the defendant would not furnish the material for making same. The jury had both the plaintiff’s and defendant’s testimony on this issue before them, under instructions as fair to defendant as he could ask. The other item is, which clause of the contract quoted in the statement to this opinion governs the compensation of the builder. We are inclined to the opinion that the first paragraph of the contract quoted in the (statement is the paragraph that governs the compensation of the builder. This is the last clause in the contract, and we are forced to the conclusion that this clause is a special clause agreed on by the parties, and it was their intention that this clause should govern in fixing the compensation of the builder.. The- contract is .in the ordinary fo'tih of contracts prepared'by architects,- and this last clause seems to be an additional clause to . the regular form of contract, and is therefore, controlling, in oiu-opinion, on the question of the compensation of the builder. It appears from the testimony that the builder had drawn- $356 of his compensation during 'the construction of the building, and that there was $533 compensation yet due. These two items added together make ten per cent, of the estimated cost of the build-, ing, - which was $8,890. Plaintiff in error insists: that the builder was to construct the building- for $8,890, and that the building cost $582.S2 more than $8,S90, and that the plaintiff, Steakley, should pay that amount to the defendant. We cannot agree with this contention. The last clause of the contract provides that the builder should be entitled to ten per cent, of the total amount of the cost of the building, not exceeding $8,890, and that if the building cost less than the estimated price the saving-should be divided' equally between plaintiff and defendant, but if the building cost more than the estimated cost, the plaintiff, builder, should not be entitled to any additional compensation. This clause of the contract clearly contemplates that the parties had in mind that the building might cost less or more than the estimated cost, and each condition is provided for. Under this state of the ease, we are inclined to the opinion, and so hold, that if the building cost less than $8,890 the plaintiff and defendant) were to divide the saving equally, and if it cost more than the estimated cost, then the builder should not receive his ten per cent, on the excess of the estimated cost. That is all he is suing for. The court below submitted these contentions to the jury on instructions that we think were fair and the plaintiff in error evidently has no fault to find with the instructions although in his assignments of errors, he assigned as error “The court erred in his instructions to the jury, all of which was, excepted to-at the time.’’ The record shows that plaintiff in error excepted to two of the instructions given by the court, but in his argument he has not argued those exceptions nor pointed out wherein they were erroneous, and has not complied with the rules of this court in that respect. This error will not be noticed further than to say we have read the instructions to which the defendant saved exceptions and can find no objections to them.

The case was fairly submitted to the. jury by the court, and the jury;found-,for the plaintiff for the amount .sued for,- and. wo are of the opinion that substantial justice has been done, and that the judgment. of the. trial court should be affirmed.

By the Court: It is so ordered.