Summary
holding plaintiffs not precluded from recovering further amounts under contract where they had cashed a check containing the phrase "Paid in Full to date of abeyance" where invoice related to check showed check was a progress payment and no dispute existed between parties at time check was cashed
Summary of this case from Lemon v. People's Tr. Ins. Co.Opinion
No. 73-200.
April 5, 1974. Rehearing Denied May 15, 1974.
Appeal from the Circuit Court for Broward County, Stewart F. LaMotte, Jr., J.
Walter Urchisin, Deerfield Beach, for appellants.
Roger H. Harper, Boca Raton, for appellees.
This suit arose out of a contract wherein appellants as architects agreed to perform certain architectural services for appellee, Spero, and one Marraffino, as owners of certain property in Deerfield Beach. Appellants sued for the balance of their fees and from an adverse final judgment they appeal.
The parties entered into a written contract, designated on its face as a "Standard Forum of Agreement Between Architect and Owner on a basis of a percentage of construction cost". Said contract provided, inter alia, that the architects would be paid 8% of the cost of construction as defined in Article 3 thereof; that for the purpose of the first payment on their fee, and only for that purpose, the sum of $150,000 would be used as the cost of construction; that the architects' estimates from time to time of the cost of construction were simply estimates and not binding; that if the construction was not completed their fee was to be determined on the lowest bid received from a qualified bidder; that the architects were to receive payments on their fee according to a schedule contained in the contract.
The evidence shows that the architects prepared the preliminary drawings, sketches, plans and specifications; that many changes were made as the building concept developed; that the cost of construction continually increased as time went on. Finally, the plans were put out to bid and the lowest bidder was $414,000. The appellees had paid appellants $12,000 on October 2, 1968, when the latter billed the former for another installment payment due at that time in the amount of $4,000. Appellees sent appellants a check for $4,000 with the legend thereon, "Paid in Full to date of abeyance", which appellants retained and cashed. Appellees decided they could not afford to build at the bid price, so on March 10, 1969, appellants wrote appellees and offered to revise the plans in an effort to reduce the cost. However, appellees decided not to proceed further. When appellees refused to pay the balance of their fee, appellants brought this suit.
The contract makes reference to certain things happening "when a fixed limit of construction cost is established". It also provides that the agreement could be amended only by written instrument signed by both parties. There is no evidence of any "fixed limit of construction cost" ever having been arrived at or any written amendments signed by the parties. Appellees attempted to testify to some oral understanding fixing the limit at a lesser figure than the bid price, but objection thereto was sustained.
Appellee, Spero, testified at trial that appellants had fully performed their contract. The schedule of payments showed appellants were entitled to 80% of fee at the point in time and stage of the transaction when appellees elected to proceed no further. Accordingly, they were entitled to the balance of $10,521.00.
Appellees make much of the legend on the check, "Paid in Full to date of abeyance". The invoice which this check responds to shows it to be a progress payment. There is no showing in the record of any dispute at that time between the parties. Thus, acceptance of the check with that legend thereon does not constitute an acceptance of it as full payment. 1 Fla.Jur., Accord Satisfaction, § 5.
The final judgment for appellees is reversed with directions to enter a final judgment for appellants in the amount of $10,521.00, together with interest from December 7, 1970.
Reversed and remanded.
WALDEN, J., concurs.
CROSS, J., dissents with opinion.
I respectfully dissent.
The majority has retried, reweighed and revaluated the probative weight of the evidence. Such is not the function of an appellate court. The scope of review by an appellate court, when a final judgment on appeal has been attacked on the basis of the evidence being insufficient, is not to revaluate the probative weight of the evidence but to look to the record to see if there is substantial, competent evidence, whether contradicted or not, that will support the judgment. The conclusions of a trial judge as to matters of fact come before an appellate court clothed with the presumption of correctness, and in testing the accuracy of such conclusions the appellate court should interpret the evidence and all reasonable inferences and deductions capable of being drawn therefrom in the light most favorable to sustain those conclusions.
In the instant case, appellant-architects agreed to render architectural services to the appellees. Preliminary drawings, sketches, plans and specifications for the appellees' project were prepared. The plans were put out for bid. The lowest bid returned was $414,000, a figure grossly in excess of what the appellees expected to pay for the project. The project was abandoned. A total of $15,000 in architect's fees was paid by the appellees to the architects.
The contract provided, inter alia, that if the project was fully completed the architects would be entitled as fee to eight per cent of the construction cost of the project. If the project was abandoned after all drawings, sketches, plans and designs were completed and after bids were obtained from various construction companies, the architects would be entitled under the contract to eighty per cent of their fee or 6.4 of the construction cost. In case of abandonment as described above, the construction cost to be used in the computation of the architect's fee was to be the lowest bona fide bid received from a qualified bidder.
Article 3 of the contract provided that the parties could establish a fixed limit of construction cost for the project as a condition of the contract. If the parties agreed to a fixed limit of construction cost, the architect's fee could not exceed eight per cent of such fixed limit.
The issue in the instant case was whether the parties had established as a condition of the contract a fixed limit of construction cost for the project. This was a factual issue to be determined from the evidence by the trial judge. The trial court found that a $250,000 fixed limit of construction cost had been agreed upon by the parties. Under the terms of the contract, this limit would entitle the architects to a fee of $20,000 if the project was completed. Since no construction work was initiated on the project, the architects were only entitled to eighty per cent of their fee, or $16,000. This amount had already been paid by the appellees to the architects. Therefore, the trial court entered judgment dismissing the suit.
There appears from the record substantial, competent evidence to support the trial court's finding of fact that the parties did establish a $250,000 fixed limit of construction cost as a condition of the contract. Appellee-Spero testified to such limit and this testimony was never rebutted by the appellants. Such parol evidence was competent to prove the existence of a condition agreed to after the contract was formulated. The condition was clearly not an amendment, which under the contract had to be in writing. Also, various actions by the appellants indicated that they felt bound by the $250,000 limitation. The appellants accepted without question two checks totalling $16,000, the second check on which the legend "Paid in Full to date of abeyance" was shown. Further, when the lowest bid submitted significantly exceeded the amount the appellees wanted to pay for the project, the appellants offered to modify the specifications of the project to bring the construction cost down. This procedure was required of the appellants under the contract only if the parties established a fixed limitation of construction cost.
I would affirm the final judgment dismissing the cause as the findings of fact made by the trial judge are not clearly erroneous but are consistent with the testimony.