Planning Systems Corp. v. Murrell

374 So. 2d 719
CourtLouisiana Court of Appeal
DecidedNovember 12, 1979
Docket10107
StatusPublished
Cited by10 cases

This text of 374 So. 2d 719 (Planning Systems Corp. v. Murrell) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Planning Systems Corp. v. Murrell, 374 So. 2d 719 (La. Ct. App. 1979).

Opinion

374 So.2d 719 (1979)

PLANNING SYSTEMS CORPORATION
v.
James R. MURRELL, III.

No. 10107.

Court of Appeal of Louisiana, Fourth Circuit.

August 1, 1979.
Rehearing Denied September 10, 1979.
Writs Refused October 8 and November 12, 1979.

*720 Chaffe, McCall, Phillips, Toler & Sarpy, Harry McCall, Jr., James P. Farwell, James A. Babst, New Orleans, for plaintiff-appellant.

Darlene Jacobs, New Orleans, for defendant-appellee.

Before GULOTTA, STOULIG and BEER, JJ.

*721 GULOTTA, Judge.

In this construction contract case for the alteration, improvement and repair of a residence, the plaintiff-contractor appeals from a jury verdict dismissing the main demand and awarding defendant-owner, in reconvention, the sum of $123,000.00. We affirm that part of the judgment dismissing the main demand but reduce the award to plaintiff in reconvention.

On January 1, 1974 plaintiff and defendant entered into a "cost plus construction contract" for alterations, improvements and repairs to 4319 Hamilton Street, owned by defendant, at an "estimated" cost of approximately $35,000.00. The contract provided for reimbursement to plaintiff for all costs incurred in connection with the construction. In addition to reimbursement the contractor was to have been paid ten percent (10%) for overhead and five percent (5%) profit. Monthly statements were to be furnished to the owner showing the amount owed the contractor for reimbursement. The agreement further provided that the owner would have access to invoices, copies of the payroll, certificates and other supporting documents.

In accordance with the contract provisions, on January 31, 1974 an invoice was sent by plaintiff to the owner for reimbursement in the sum of $4,423.60. This amount was paid on February 5, 1974. Again, an invoice for reimbursement dated February 28, 1974, in the sum of $5,371.87, was paid on March 8, 1974. On April 26, 1974 defendant paid plaintiff-contractor an additional $9,000.00 although the invoice for reimbursement, dated March 31, 1974, was only for the sum of $8,365.18. According to defendant because work had not progressed proportionately with the amount of payments made, and because he was unable to ascertain from plaintiff an estimated total cost of the construction, defendant refused to pay April, May, August and September invoices which amounted to $12,104.65.[1] Because of non-payment by the owner, plaintiff discontinued work and this suit followed.

We are first confronted with the question of whether this contract is a cost plus one, as contended by plaintiff, or a fixed price contract, as contended by defendant.[2] In Wendel v. Maybury, 75 So.2d 379 (Orl.La.App., 1954), this court concluded that a building contract which provided for an agreed contract price but which provided that the contractor exhibit to the owner the bills for material and labor before payment was to be made to the contractor was a cost plus contract. See also Sam Parish Const. Co. v. Cities Service Pipeline Co., 254 So.2d 73 (La.App. 3rd Cir., 1971), writs refused, 260 La. 289, 255 So.2d 773 (La.1972). When we consider the contract language in the instant case, together with the language and holding of this court in Wendel, supra, and the 3rd Circuit holding in the Parish Construction Company case, supra, we are led to the conclusion that the contract in the instant case is a cost plus one.

*722 Considering plaintiff's next contention, we find no merit to the claim that the jury erred in dismissing the main demand. The estimated cost of the alterations, according to the contract terms, was approximately $35,000.00. In February 1972 the residence was purchased by defendant at a cost of $24,000.00. In November 1972 the property was extensively damaged by fire for which defendant was paid insurance in the amount of $32,000.00. Estimates for restoration of the damaged property caused by the fire amounted to $52,500.00. Plaintiff discontinued work in August 1974 and Samuel P. Pearce, a contractor employed by defendant to complete the job, commenced work in November 1974.

According to Pearce, when he "took over the job" the carpentry had not been completed; the plumbing had been "roughed in", but major plumbing and electrical changes were required. Pearce testified that the roof which plaintiff had repaired, "had a big hole in it" and charred beams needed replacement. He added that beams were not "square" and the skylight had not been set in properly, all of which made the roof unprepared for sheetrocking. This witness stated that because walls were "out of plumb", restripping and realignment were required. He estimated further that only about fifteen percent (15%) of the house had been prepared for sheetrock.

Essential to our consideration is the fact that at the time Pearce commenced work in November 1974 defendant had paid plaintiff a sum in excess of $18,000.00 and had been billed for an additional sum in excess of $12,000.00. Although the condition of the premises as described by Pearce was nowhere near completion, defendant had paid and had been billed for approximately a total of $31,000.00 of the $35,000.00 estimated contract cost. Clearly the extent of the repairs were not commensurate with and had not progressed proportionately with the total amount of payments made and billed.

In Kerner v. Gilt, 296 So.2d 428 (La.App. 4th Cir., 1974), writs refused, 300 So.2d 185 (La.1974), we stated that in a cost plus contract it is implicit that the costs are reasonable and proper. Where the owner denies being indebted to the contractor, the contractor has the burden of proving each and every item of expense in connection with the job. He is under a duty to itemize each and every expenditure made by him. The Kerner court also cites Wendel v. Maybury, supra and Lee v. National Cylinder Gas Co., 58 So.2d 568 (Orl.La.App., 1952). Applying Kerner to our case, we conclude plaintiff simply failed to carry the burden of showing performance. Accordingly, we find little difficulty in holding that the jury correctly determined that plaintiff was not entitled to recover on the main demand and defendant is clearly entitled to damages resulting from plaintiff's breach.

However, the most perplexing aspect of this matter is the amount of damages to which defendant is entitled. LSA-C.C. article 2769 provides:

"If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract."

Also, well settled is the rule that in fixed price contract cases where a contractor has substantially performed the contract he is entitled to recover the contract price while the owner is entitled to recover the cost of correction and completion. Where there has been no substantial performance the contractor is entitled to recover from the owner in quantum meruit. Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (La.1961); Keating v. Miller, 292 So.2d 759 (La.App. 4th Cir., 1974); Neel *723 v. O'Quinn, 313 So.2d 286 (La.App. 3rd Cir., 1975), writs refused, 319 So.2d 440 (La. 1975).

Furthermore, substantial performance is a question of fact.

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

Related

ETI, Inc. v. Buck Steel, Inc.
211 So. 3d 439 (Louisiana Court of Appeal, 2017)
Politz v. Randy Key Construction, Inc.
836 So. 2d 168 (Louisiana Court of Appeal, 2002)
NATIONAL BLDG. v. Alerion Bank & Trust Co.
772 So. 2d 938 (Louisiana Court of Appeal, 2000)
Schiro-Del Bianco Enterprises v. Nsl
765 So. 2d 1087 (Louisiana Court of Appeal, 2000)
M. Carbine Restoration, Ltd. v. Sutherlin
544 So. 2d 455 (Louisiana Court of Appeal, 1989)
Ellis Millwork, Inc. v. Frees, Inc.
493 So. 2d 696 (Louisiana Court of Appeal, 1986)
American Plumbing Co., Inc. v. Hadwin
483 So. 2d 169 (Louisiana Court of Appeal, 1986)
Joe Bonura, Inc. v. Hiern
419 So. 2d 25 (Louisiana Court of Appeal, 1982)
Planning Systems Corp. v. Murrell
376 So. 2d 319 (Supreme Court of Louisiana, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
374 So. 2d 719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/planning-systems-corp-v-murrell-lactapp-1979.