Fenner v. Bolema Construction Company

Assumpsit by Myron Fenner, doing business as Fenner Crane & Truck Service, against Bolema Construction Company, a Michigan corporation, for work and labor performed. Verdict and judgment for plaintiff. Defendant appeals. Affirmed. DETHMERS, J. Defendant appeals from a judgment of $1,730.72, entered on jury verdict, for services rendered by plaintiff. Defendant had a contract with the city of Muskegon for construction of a sewer. It entered into an arrangement with plaintiff under which it agreed to pay plaintiff at the rate of $5 per hour for a bucket and crane and 1 operator to do excavating on the job. Plaintiff testified that the agreement included the provision that excavating was to be done between sheeting; that when the job was begun difficulties and delays were encountered in placing the sheeting so that defendant determined to abandon that method and to pursue the open-cut method; that thereupon a new agreement was made under which defendant agreed to pay plaintiff at the rate of $1 per foot for excavating by the open-cut method; that the latter method required the removal of much more dirt and greater use of the crane by plaintiff; that afterwards defendant also requested plaintiff to do backfilling work with a bulldozer and agreed to pay therefor at the rate of 85 cents per foot; that plaintiff excavated the entire 1,080 feet through which defendant was obligated to the city to lay a sewer; that plaintiff did 400 feet of backfilling, at which time his workmen left the job. Judgment was for an amount representing the 1,080 feet of excavating and 400 feet of backfilling at $1 per foot and 85 cents per foot, respectively, plus interest. Defendant denied that the original agreement called for sheeting or that any substituted agreement was ever entered into in place of the original arrangement which called for excavating to be done at the rate of $5 per hour, and claimed that when the excavation was completed plaintiff agreed to do backfilling at $8.65 per hour and that, thus computed, there was due plaintiff the sum of $763.80, which amount was tendered as payment in full.