Gibson-Lewis Corp. v. Northern Indiana Public Service Co.

524 N.E.2d 1316, 1988 Ind. App. LEXIS 511, 1988 WL 67234
CourtIndiana Court of Appeals
DecidedJune 29, 1988
Docket37A03-8705-CV-0136
StatusPublished
Cited by19 cases

This text of 524 N.E.2d 1316 (Gibson-Lewis Corp. v. Northern Indiana Public Service Co.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gibson-Lewis Corp. v. Northern Indiana Public Service Co., 524 N.E.2d 1316, 1988 Ind. App. LEXIS 511, 1988 WL 67234 (Ind. Ct. App. 1988).

Opinions

STATON, Judge.

Gibson-Lewis Corporation (Gibson) appeals that portion of the trial court's judgment awarding it only $20,800.00 for certain work it completed at the Rollin M. Schahfer Generating Station in Jasper County, Indiana (the project). Gibson also appeals the trial court's award of pre-judgment interest and attorney's fees.

[1317]*1317We have restated the issues as the following:

1. Was a valid and binding written contract formed between Gibson, a sub-subcontractor on the project, and Gough Construction Company (Gough), a subcontractor?
2. Absent a contract, did the trial court err in calculating Gibson's award? 1

Affirmed.

In September or October of 1981, Gough asked Gibson to submit a written bid doe-ument indicating how much it would charge to perform certain work on the project. Thereafter, Gibson did indeed submit a written bid document which stated that it would perform fireproofing and other work on a portion of the project.

On December 10, 1981, Gough sent Gibson a letter of intent, advising Gibson that it had been selected as a sub-contractor. The letter of intent stated that a subcontract would be completed for Gibson's signature.

On December 22, 1981, Gibson sent Gough a written acknowledgment and began preparations for the work. On that same date, Gough sent Gibson an unsigned standard form subcontract.

However, Robert Carpenter, an officer of Gibson, changed the form contract by inserting an additional typewritten clause which stated: "ISA 1-106, dated 1-19-82, is included in this contract." Carpenter also prepared an "Addendum to Subcontract" using a preprinted form (I-106). The addendum stated, in part:

"Fireproofing of columns only on Column Row 25 to roof heighth (sic)...."

Carpenter attached the addendum to Gough's form contract. He signed both the addendum and the form contract.

Upon receipt of the documents, Joseph Gent, vice-president of Gough, signed the original form contract, but not the addendum.

No further conversations or correspondence took place between the parties until May 20, 1982. At that time, the project's owner and the general contractor informed Gibson that the beams and braces on Column Row 25-as well as the columns would have to be fireproofed.

Thus, on July 1, 1982, Gibson informed Gough, in writing, that it would proceed to do the work, but that it would treat the work as additional work to its contract.

Gibson also informed Gough that since the work was specifically excluded from the contract, a written directive was necessary. This requirement was included in the addendum to the original contract form.

At first, Gough refused to issue a written directive. Thus, Gibson refused to do the work. After Gibson completed the fireproofing of the columns on Column Row 25, it removed its equipment from the job site.

After receiving a telegram from Gough directing Gibson to fireproof the beams and braces on Column Row 25, Gibson returned to the site and performed the work.

The trial court, in issuing its findings of fact and conclusions of law, found the following: (1) that there was no meeting of the minds between the parties and, hence, no contract; (2) that the bid, notice to proceed, and confirmation of understanding constituted a sufficient agreement so that Gibson could recover the amount of its bid for the other work it performed on the project; (8) that because the work Gibson performed on the beams and braces on Column Row 25 was not covered by those documents, Gibson was entitled to the quantum meruit value of its services in doing that work; and (4) that while Gibson claimed that the value of those services [1318]*1318was $67,785.95, it was only entitled to $20,-800.00 since "a very high percentage" of the cost in fireproofing the beams and braces on Column Row 25 was caused by Gibson's own actions in removing its equipment from the site, then returning later to perform the work.

In reviewing the trial court's findings of fact, we neither weigh the evidence nor determine the credibility of witnesses. Findings of fact will be disturbed only if the record discloses that there were neither facts nor inferences on which to base the findings. In other words, this Court will disturb the trial court's findings of fact only when such are clearly erroneous. Greenfield Builders and Erectors, Inc. v. Fellure (1982), Ind.App., 443 N.E.2d 87, 90, reh. denied. See also Ind. Rules of Procedure, Trial Rule 52(A). Our scope of review also allows us to determine whether the law was correctly applied to the facts. Laws v. Lee (1984), Ind.App., 471 N.E.2d 1229, 1232, reh. denied.

Gibson first disputes the trial court's finding that there was no meeting of the minds and thus no written contract formed between Gibson and Gough. Gibson contends that by signing the original contract form Gough also accepted the terms of the addendum. However, there was conflicting evidence at trial. Robert Carpenter, an officer of Gibson, testified that Joseph Gent, then vice-president of Gough, returned the original contract form to him signed and with the addendum attached. Record at Volume 6, pages 895 96. Yet, Gent testified that when he signed the original contract, the addendum was not attached to the document. Recozjd at Volume 5, pages 726-27.

As stated above, on appeal, we neither weigh the evidence nor determine the eredi-bility of witnesses. Further, where there is probative evidence to support the conclusion that there was no meeting of minds between the parties to an alleged contract, the Court of Appeals will not disturb that conclusion. Continental Grain Co. v. Followell (1985), Ind.App., 475 N.E.2d 318, 321, trans. denied.

Thus, because the trial court found that there was no meeting of the minds between Gibson and Gough, it was correct to conclude that no written contract was formed between them. Before there can be said to be an agreement between the parties, there must be a meeting of the minds of such parties upon the matter attempted to be agreed upon, and no contract can be said to have been created between the parties whose minds have not agreed upon one and the same thing. Miller v. Sharp (1912), 52 Ind.App. 11, 100 N.E.2d 108, 110.2

Therefore, absent an agreement regarding the beams and braces on Column Row 25, Gibson was entitled to the quantum meruit value of its services in complet-img the fireproofing work on those beams and braces. See Dyer Construction Co., Inc. v. Ellas Construction Co., Inc. (1972), 153 Ind.App. 304, 287 N.E.2d 262, 264; and Coleman v. Chapman (1966), 139 Ind.App. 385, 220 N.E.2d 285, 288.3

Gibson next contends that the trial court erred in calculating its award. If it was only entitled to the quantum meruit [1319]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Robert Holland v. Indiana University
Indiana Court of Appeals, 2025
Swami, Inc. v. Franklin Drywall II, LLC
Indiana Court of Appeals, 2013
French v. State Farm Fire & Casualty Co.
950 N.E.2d 303 (Indiana Court of Appeals, 2011)
Thor Electric, Inc. v. Oberle & Associates, Inc.
741 N.E.2d 373 (Indiana Court of Appeals, 2000)
Allstate Insurance Co. v. Dana Corp.
737 N.E.2d 1177 (Indiana Court of Appeals, 2000)
Oil Supply Co. v. Hires Parts Service, Inc.
670 N.E.2d 86 (Indiana Court of Appeals, 1996)
McCorry v. G. Cowser Construction, Inc.
644 N.E.2d 550 (Indiana Supreme Court, 1994)
McCorry v. G. Cowser Construction, Inc.
636 N.E.2d 1273 (Indiana Court of Appeals, 1994)
Kern v. City of Lawrenceburg
625 N.E.2d 1326 (Indiana Court of Appeals, 1993)
General Motors Corp. v. Zirkel
617 N.E.2d 921 (Indiana Supreme Court, 1993)
D & G STOUT, INC. v. Bacardi Imports, Inc.
805 F. Supp. 1434 (N.D. Indiana, 1992)
Northern Indiana Public Service Co. v. Stokes
595 N.E.2d 275 (Indiana Court of Appeals, 1992)
Matter of Estate of Kroslack
570 N.E.2d 117 (Indiana Court of Appeals, 1991)
Weisman v. Hopf-Himsel, Inc.
535 N.E.2d 1222 (Indiana Court of Appeals, 1989)
Gibson-Lewis Corp. v. Northern Indiana Public Service Co.
524 N.E.2d 1316 (Indiana Court of Appeals, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
524 N.E.2d 1316, 1988 Ind. App. LEXIS 511, 1988 WL 67234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibson-lewis-corp-v-northern-indiana-public-service-co-indctapp-1988.