Opinion
Docket No. 35, Calendar No. 47,078.
Decided May 17, 1957.
Appeal from Antrim; Brown (Charles L.), J. Submitted April 4, 1957. (Docket No. 35, Calendar No. 47,078.) Decided May 17, 1957.
Action by Bryce N. Barnes against Lawrence H. Beck and Edith Beck for sums claimed due on oral building contract. Judgment for defendants. Plaintiff appeals. Affirmed.
Harry T. Cook ( Stuart D. Hubbell, of counsel), for plaintiff.
James R. Zerafa, for defendants.
This case is an instance of what is getting to be chronic litigation between home owner and contractor. The one invariably claims that the contractor agreed to build a house on his lot for so much money, whereas the other usually insists that the agreed arrangement was that of "cost plus" construction. The parties in cases of such nature rarely reduce their commitments to writing. When they do, apparently inevitable controversies respecting extras and subsequent modifications — occasioned by claimed oral agreement from time to time as work progresses — make up a congeries of trouble for our trial courts.
In the case before us there was no written agreement. The decisive questions before the trial court were (a) whether the original agreement was that of a fixed price or otherwise and (b) whether the original agreement, whatever its determined nature, was agreeably modified so as to provide plaintiff with a right of recovery as claimed by him.
Plaintiff Barnes is a building contractor whose principal business is carried on in Antrim county. He operates a lumber yard at Eastport. Originally, and with satisfaction all around, he built a summer cottage for defendants Beck on Torch lake. After the cottage was finished, and after the Becks had started to use it, Mrs. Beck produced a set of plans, known in the record as the "Better Homes Gardens Five-Star plan," and opened negotiations toward construction by plaintiff of a permanent home for defendants on their building lot in Birmingham. According to plaintiff, the agreement finally reached between the parties was that he would furnish materials (at wholesale cost) and labor for construction of the house according to such plans and that the defendants would pay him for his "out-of-pocket expense for these materials and labor in addition to an hourly wage to be paid plaintiff for his own work on the job."
Plaintiff says that the total cost of such labor and materials, so furnished by him, was $17,450.86; that defendants have paid him $11,000 only, and that he is entitled to recover from defendants a computed balance of $6,450.86. Defendants insist that plaintiff agreed to build the home according to such plans for a total sum of $17,000 "exclusive of painting and decorating," and that they have paid plaintiff considerably more than what they claim was the agreed contract price.
Construction was duly commenced. The usual disagreements began to appear as estimates and costs parted company according to dismaying post-war building-trade developments. When the job was near completion, financing of a substantial part of the cost of construction was accomplished through a mortgage loan made by the Equitable Life Assurance Society of the United States. To complete the loan, it was necessary that a release and certificate of payment form be signed by the general contractor. Plaintiff executed such a release and certificate but claims that it was conditionally delivered by express agreement of the parties, without prejudice to his present claim. To the contrary, defendants insist that its recitals were correct in fact and that there was no conditional or special agreement with respect thereto.
The trial judge found (the case having been tried to the court) that the original agreement between the parties was that of construction of the home for an agreed price of $17,000, exclusive of painting and decorating; that the defendants had paid plaintiff a total of $11,100; that defendants had paid $5,107.99 for building materials plaintiff obligated himself to provide as a part of the agreed job; that they had paid various subcontractors of plaintiff a total of $5,661.17, and that they had accordingly paid plaintiff, for the job so undertaken, a total of $21,869.16. On such finding — recorded later in opinion denying new trial — the trial judge entered judgment of no cause. Plaintiff reviews in pursuance of Court Rule No 64 (1945) and presents the usual question on review of law cases tried without a jury, viz., "That the judgment is against the preponderance of the evidence."
We accept the belated finding for present purposes ( Morley Brothers, Inc., v. F.W. Patterson Construction Co., 266 Mich. 52; Irwin v. Williamson Candy Co., 268 Mich. 100).
First: The tendency in recent years toward waiver of trial by jury, worthy though it may be in the name of prompt submission and determination of a law case, points up an apparently continued misconception of our function when nonjury cases arrive for appraisal under Court Rule No 64. The drumfire of jury arguments delivered here, orally and in brief on review of such cases, suggests that we are not getting through to counsel with previous declarations that we do not hear and consider Rule No 64 cases de novo ( Jones v. Eastern Michigan Motorbuses, 287 Mich. 619; Schneider v. Pomerville, 348 Mich. 49) and that the trier of facts is in better position than we are to judge the right and wrong of human memory and the "demeanor-clues" witnesses personally exhibit on the witness stand.
By the expression "jury argument" we refer, of course, to the required nature of summations before petit juries and trial judges distinguished from arguments of points of law in appellate courts. Each has its place. One is made in the forum where the credibility of witnesses is weighed and disputed questions of fact are settled. The other is presented upon a kiln-dried record of proceedings at law, brought to a higher court for determination of questions of law. Thus, whether a judgment is contrary to the clear preponderance of the evidence "is a question of law rather than one of fact" ( Jones v. Eastern Michigan Motorbuses, 287 Mich. 619, at page 648), and court and counsel in discussion thereof should treat it so. Manifestly, and in the course of such discussion, suggestion that we should accept the testimony of this or that witness as against opposing testimony the trier of facts has accepted, or that an emphasized document or circumstance should be accorded evidentiary superiority contrary to proof-supported finding below, or that a selected inference drawn from the record in opposition to such finding is the key to correct answer of the assignment of error before us; all these disclose fundamental misunderstanding of our relevant province. In short, it takes convincing proof (as in Schneider v. Pomerville, 348 Mich. 49) that the judicial trier of facts has overlooked or ignored and thus did not test crucial testimony to warrant reversal or remand by force of an assignment addressed to clear preponderance. Indeed, to sustain such an assignment, we must be shown what is rightly known as a "glaring error" ( Besser Manufacturing Co. v. United States, 343 U.S. 444, 448 [ 72 S Ct 838, 96 L ed 1063]).
Modern science extends an apt illustration. The televised delivery lends a great deal more to the accuracy of belief or disbelief than does the invisible yet audible radio speech of the same personality. The latter in turn is relevantly more aidful than the comparably tabescent printed record of utterance. We noted, in In re Calhoun Estate, 346 Mich. 227, 232, 233, that the best and most accurate record of oral testimony "is like a dehydrated peach; it has neither the substance nor the flavor of the peach before it was dried," and in Hayes Construction Company v. Silverthorn, 343 Mich. 421, 428, 429, that:
"The trier of the facts in such a matter has an inestimable advantage over the appellate tribunal. The hesitant word and the averted glance stand on a parity, on the printed page before us, with the positive assertion and the forthright expression. Not so in the mind and conscience of the nisi prius judge. He makes his appraisal of truth or falsity upon an evaluation of all the elements visible and audible, and while cases may occur in which his disregard for the clear preponderance is manifest even in these chambers, this case is not one of them."
Mr. Justice Burton has the right expression for that which is before the trier of facts. He calls it "the living record" and points out that the trial judge's appraisal of such record is entitled to proportionately more reliance, rather than less, the farther the reviewing court is removed from the scene of trial ( Von Moltke v. Gillies, 332 U.S. 708, 740 [ 68 S Ct 316, 92 L ed 309]).
We write here, not alone for this case of Barnes but for the increasing numbers of cases brought to us under said Rule No 64. The place for powered emphasis on what each party claims should be the facts is in our trial courts. When the facts are found there and review of the judgment takes place, we consider alleged errors of law only and do not, as has been urged (see In re Hoffman's Estate, 183 Mich. 67, and discussion of the 1938 committee report of American Bar Association, pp 639, 640, of report of Jones v. Eastern Michigan Motorbuses, supra), proceed as in equity cases.
The joint committee (judicial conference and State bar) on Michigan procedural revision is presently considering a somewhat similar report, not as yet published.
Second: Turning now to the case before us:
We have previously noted the general findings of the trial judge. He was influenced in arriving at decision that plaintiff should not recover by defendant Lawrence H. Beck's testimony that the agreed construction price was $17,000 (exclusive of painting and decorating); by an admission of plaintiff "that he was paid up to date" when plastering of the home was completed; by testimony that plaintiff regularly told defendant Lawrence H. Beck, as work progressed, that "we are right about where we ought to be" (with respect to cost of construction); by conclusion that "it is inconceivable to this court that plaintiff could possibly have expended $9,776.99 * * * for materials after all the plastering was completed;" by the fact of plaintiff's having signed the mentioned release and certificate (reciting that "all labor and material, except labor of bricklayer, has been paid in full"), and finally (with respect to the original agreement of the parties) by plaintiff's testimony, when denying he had quoted a price of $17,000 to defendants, that he "couldn't recall whether he mentioned price at all."
The record discloses arguable testimony and inference supporting and opposing Judge Brown's findings as outlined. We are consequently obligated to rule that the judgment entered on such findings passes muster as against plaintiff's challenge.
Affirmed, with costs to defendants.
SMITH, EDWARDS, VOELKER, and CARR, JJ., concurred with BLACK, J.
DETHMERS, C.J., and SHARPE and KELLY, JJ., concurred in the result.