Rehearing Denied June 23, 1959.
[85 Ariz. 396] Gust, Rosenfeld, Divelbess & Robinette, and Frank E. Flynn, Phoenix, for appellant.
Palmer C. Byrne, Prescott, for appellee.
Emil Zancanaro, hereinafter referred to as defendant, appeals from a judgment awarded Norman Cross, dba Cross Plumbing & Heating Co., hereinafter referred to as plaintiff, as damages for breach of a written contract to install plumbing and fixtures in a tract of 50 homes to be built by defendant. Plaintiff cross-appeals on the amount of damages awarded it on the written contract, and also appeals the dismissal[85 Ariz. 397] of its second cause of action on an oral contract to install outside water and sewer lines in the same tract. Defendant further appeals the dismissal of his counterclaim for damages allegedly caused by the negligence of plaintiff in performing his work.
Defendant planned to build a tract of 50 homes near Kingman, Arizona, with the Ware Construction Company as general contractor. Plaintiff submitted a bid to furnish fixtures and install plumbing in the 50 houses for $34,475. The bid form provided that it should become a binding contract upon acceptance, and contained a 'Schedule of Conditions', with provisions for attorney's fees in case of suit. The contract price was made payable in certain percentages as the work progressed. The signatures of acceptance of defendant and of the general contractor were dated March 23, 1955.
Plaintiff and one Harlan Jost testified that at the time defendant accepted the contract he told them that he would like to build three houses a week at first, with a house a day thereafter. The homes were to be very much alike, so that most of the materials could be pre-cut in quantity.
Plaintiff was not aware that defendant's agreement with the general contractor recited that he had contracted with the Mohave County Board of Supervisors to build the 50 houses within three years, and that his financing arrangements with the Valley National Bank were to be on a basis of 'ten and ten'. The general contractor had agreed to any delay that might be caused by this requirement that each group of ten houses must be sold, thus substituting mortgagors, before the next group of ten could be financed.
Defendant's contract with plaintiff made no reference to these arrangements, nor did it make any reference to his agreement with the general contractor.
Construction was commenced almost immediately, with plaintiff beginning his work in each house as it was ready. Defendant apparently felt there would be no delay in construction, for on March 26, 1955, he placed an order for windows for the entire 50 houses. Plaintiff had ordered the plumbing fixtures directly from the manufacturer in carload lots of 50; this had been the basis of his bid price and was much less costly than buying fixtures in smaller quantities from a wholesaler.
After the first houses had been started, however, defendant advised plaintiff that he might not build the entire 50 houses and told him to cancel his orders for the fixtures in carload lots. Defendant then authorized plaintiff to order fixtures of lesser quality than had been specified, in order to lessen the increased cost of ordering in small quantities. The fixtures thus purchased still cost considerably more than those originally ordered.
[85 Ariz. 398] By the end of August, 1955, 25 houses were being completed, with no evidence that the remaining 25 would be built. The forms had been stacked 'as if for storage', and defendant had made no arrangements
for further financing. In fact, there was no new construction until February of 1956, when six more houses were started. Plaintiff apparently announced that he was through, as there were no more houses to work on. His men finished with the last one of the 25 houses on September 29, 1955.
On December 31, 1955, plaintiff filed suit for breach of the written contract, to recover anticipated profits for the entire 50 houses. He also sued on an oral contract with defendant to install the utilities between the main sewer and water lines and the houses. Defendant counterclaimed, claiming damages as the result of plaintiff's allegedly faulty work in performance of both the written and oral contracts.
Defendant has made many assignments of error, all directed at the trial court's findings of fact and conclusions of law. We will deal ...