Benes v. Hickox Bldg. Co.

SKEEL, PJ

(DISSENTING):

The action of the plaintiff is one based upon a contract between the parties under which plaintiff was to act as general contractor in building a “Building for Bond Stores-Inc. at Euclid Avenue and East 9th Street, Cleveland, Ohio.’” The contract provides in part:

“In general, the work covered by the contract contemplates, a completed building, ready for use by Bond Stores Inc., hereinafter called ‘Bond’ as lessee of the owner under a certain indenture of lease dated as of June 1, 1944, and hereinafter called the ‘Lease’ but in no event shall the work covered by. this contract include the following items: * *

Then follow the items excluded from the operation of the-contract which included the demolition of the building then on the property, the purchase and execution of the steel work and the installation of the store fixtures. With regard to-the following six items the owner reserved the right to procure proposals and could include or withhold such work, within or outside of the contract. Such items were:

1. Plumbing

2. Heating and Air Conditioning work

3. Electrical work

4. Elevators (2) and sidewalk lift

5. Pneumatic tube system

6. Sprinkler system.

The building was to be built in accord with plans and specifications prepared by the Architect and approved by *299the parties which specifications and plans were made a part •of the record.

The contract then provides:

“The Contractor shall commence work on the foundation at once and shall proceed with the same as rapidly as permitted by the progress of the work of demolition of the Hiekox Building. The Contractor shall commence the balance of the work covered by this Contract forthwith upon the approval of this contract by Bond and the deposit with the Disbursing Agent in accordance with the provisions of Sec. 3 of Article I of the aforesaid Lease, of the cost of the new building * * *.”

Article 3 Section I of the Contract, entitled “The Contract Sum” then provides:

“(a) The cost of the work performed by the Contractor hereunder as such cost is defined and restricted by the provisions hereinafter contained in Section 2 of this Articlle III; and

(b) The Contractor’s fee which shall be Twenty-Five Thousand Dollars ($25,000.00) plus an amount equivalent to five percent (5%) of the cost as defined and restricted in Section 2 of this Article III, of such of items (1) to (6) inclusive, as set forth in Section 1 of Article I hereof, as the owner, in accordance with the provisions of said section, causes to be included in the work covered by this Contract: provided, however, in no event shall such additional fee of the Contractor exceed Ten Thousand Dollars ($10,000.00) and provided further, anything in this Contract to the contrary notwithstanding if this Contract is not approved by Bond, then the contractor’s fee shall not exceed five percent (5%) of the cost as defined and restricted in Section 2 of this Article of the work performed by the Contractor hereunder.”

The plaintiff alleges that the defendant refused to permit him to carry out his obligations under the contract, whereby he was damaged in the sum of $45,000.00 which he alleges to be the fair value of his profit, benefits and rights under said contract.

The plaintiff also testified in substance that if he had been permitted to carry out his part of the contract he would have been put to no expense that was not otherwise incurred by him and that the time that would have been consumed would not have interfered with any other work he either *300did or could have done and that the damage suffered would therefore be five percent of the total cost of the building. There was no other evidence on the subject of damages.

The record shows that Bond’s did not approve the contract and that the building was actually built by another contractor, except for the footages that were constructed by the plaintiff for which he was paid at the contract rate. The evidence also shows that the total cost of the building was $909,641.44 which included $70,707.96 expended for steel construction.

The plaintiff’s claims of error are as follows:

Í. The finding, judgment, ruling and decree of the trial court is contrary to and against the manifest weight of the evidence.

2. The finding, judgment, ruling and decree of the trial court is not sustained by sufficient evidence.

3. The sustaining of defendant’s motion at the conclusion of plaintiff’s testimony and dismissing plaintiff’s- amended petition was against the weight of the evidencé and is. contrary to law.

It was an essential part of plaintiff’s case that he produce the contract upon which his claim was based. The provisions, which are determinative of the issues presented to the trial court have been above set forth.

It is true as argued by plaintiff that the contract contemplated a completed building. But it is equally true that the-building was to be constructed for a special purpose and for a particular lessee, Bond Stores Inc. Before the plaintiff was granted the right to perform the major part of the work contemplated by the contract, the contract required the approval of “Bonds.” The provision as above quoted clearly provided under Article III is:

“* * * and provided further, anything in this contract,, to the contrary notwithstanding, if this contract is not approved by Bonds, then the Contractor’s fee shall not exceed five percent (5%) of the cost as defined and restricted in Section 2 of this Article of the work performed by the Contractor hereunder.”

Until therefore “Bond” had approved the contract the only-work which he was called upon to do was with regard to the foundation for which he was to be paid the cost of the materials and labor, plus five percent. The plaintiff’s own. *301evidence, taken in its most favorable light, in supporting the issues contended for, by the plaintiff, shows clearly that under the facts as thus established he was not entitled to recover.

One other question is presented, and that is whether there is any evidence of damage which, if our interpretation of the contract be not correct would entitle plaintiff to recover more than nominal damages.

The plaintiff’s evidence is that even if the building had been constructed by him, no duties were imposed upon him that require the expenditure of money or create costs which would be saved if he did not do the work and that his time would not have been engáged sufficiently if the work had been done that would have in any way interfered with his doing any other work of the same kind during the period of construction.

It is inconceivable that these statements could possibly be true. To say that a contractor could build a $900,000.00 building within a period of 100 working days without expense or cost to him, that could not be avoided if he did not do the work, or. that his own time for which he was to be paid up to $35,000.00 if he did the work, would not consume time that could otherwise be gainfully employed if he did not do the work, just is not worthy of belief and should be entirely disregarded.

In the case of Black v. City of Berea, 137 Oh St 611 at pages 626-7, the supreme court, by Turner, J., quotes with approval from Cyclopedia of Automobile Law and Practice, Vol. 10, page 146 as follows:

“Where facts testified to are opposed to all natural laws and common experience, so that it is inconceivable that any such thing could have occurred, courts will refuse to believe it, on the ground that they will take judicial notice of its incredibility.”

The rule that upon a motion for directed verdict or for judgment at the end of the plaintiff’s case the evidence was to be construed most favorably toward the plaintiff cannot be extended beyond the realm of reason.

For the foregoing reasons the judgment should be affirmed.