concurring and dissenting.
I agree with the Chief Justice that there was no evidence to support equitable estop-pel. There was, however, sufficient evidence for the trial court to determine, as it apparently did, that there was a contract manifested by conduct and implied in fact between Engineers-Architects, P.C. (EAPC) and St. John. I am not definitely and firmly convinced that there was insufficient evidence to support the clumsy finding that EAPC “purported to represent St. John in the supervision of Keegan, but failed to properly supervise the work that was performed by Keegan.” Therefore, I dissent from reversal of the judgment against EAPC.
NDRCivP 52(a) says: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Normally, this court does not weigh the relative importance of conflicting items of evidence:
“A finding is clearly erroneous only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. [Citations omitted.] That we may have viewed the facts differently if we had been the initial trier of the case *288does not entitle us to reverse the lower court. [Citations omitted.] Our function is not to decide factual issues de novo.” Byron v. Gerring Industries, Inc., 328 N.W.2d 819, 821 (N.D.1982).
The Chief Justice correctly observes that Raymond E. Engen of EAPC testified that St. John’s Superintendent Rintala declined to hire him to do inspections. But the trial court was free to disbelieve this self-serving testimony in judging Engen’s credibility in the light of other evidence. And, EAPC claims that St. John was billed for services on an hourly basis which did not contain any billed hours for inspections. However, one billing showed, without explanation, several hundred dollars in services billed during the time that Keegan was performing the work.
While dealings were informal and haphazard, it was plain that EAPC prepared the plans and specifications for St. John, and that EAPC was paid directly by St. John for doing so. EAPC was clearly identified to bidders as “Consulting Engineer” for the project and as having prepared the plans. The plans and specifications prepared by EAPC contained numerous references to inspections by the engineer in the course of performance by the contractor. Article 2, section 2.2.15 (as changed by Article 16) said: “The [Engineer] will conduct inspections to determine the Dates of Substantial Completion and final completion and will issue a final Certificate for Payment.” Article 16.20 provided for a “Final Observation” and “a follow-up visit to the Project” by the “Engineer.” This documentary evidence was inconsistent with Engen’s testimony that he had earlier been told by the school superintendent not to do inspections.
EAPC could easily have deleted inconsistent provisions, qualified them by a specific addendum to the plans and specifications, or otherwise advised St. John in writing that no inspections were planned. Since the plans and specifications prepared by EAPC said inspections would be done, an agreement to inspect and supervise was inferable from the specification documents.
Furthermore, Ray Engen of EAPC was at the boiler site after the work was completed, met with the school board, and corresponded with the manufacturer of the boiler on behalf of St. John before EAPC was paid by St. John (I Appendix 25-28). And, the trial court was entitled to weigh EAPC’s cozy relationship with Keegan, “the successful bidder,” who arranged for EAPC to prepare the plans and specifications for St. John.
While the evidence about EAPC’s obligation to inspect and supervise was not whelming, it was enough. Since I am not definitely and firmly convinced that a mistake was made, I would affirm the trial court’s findings and uphold the judgment.