Opinion
No. 1-810 / 01-0392.
Filed May 31, 2002.
Appeal from the Iowa District Court for Dubuque County, Lawrence H. Fautsch, Judge.
Defendant appeals the district court ruling entering judgment in favor of plaintiff on its breach-of-contract claim. AFFIRMED.
Douglas M. Henry and Norman J. Wangberg of Fuerste, Carew, Coyle, Juergens Sudmeier, P.C., Dubuque, for appellant.
Gary K. Norby of Kane, Norby Reddick, P.C., Dubuque, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Midwest Rail Dismantling, Inc. (Midwest), appeals the district court ruling entering judgment in favor of Tschiggfrie Excavating Co. (Tschiggfrie) on its breach-of-contract claim. Midwest contends the court erred in concluding (1) Tschiggfrie substantially performed under their contract and (2) Midwest could not recover under its counterclaim. We affirm.
Background facts and proceedings .
In October of 1998, Mark Perou, an employee at Midwest, contacted Rod Tschiggfrie, an officer with Tschiggfrie, to inquire whether Tschiggfrie would be interested in providing concrete crushing services at a Midwest project at John Deere Works. Midwest had intended to crush the concrete with its own equipment, but that equipment had been tied up in another crushing job and was therefore unavailable. Midwest was also running behind on its project at John Deere Works and thus enlisted Tschiggfrie to aid with the crushing portion of its work.
Tschiggfrie agreed to do the work, and on October 30, 1998, Rod Tschiggfrie drew up a written contract which called for Tschiggfrie to crush approximately 8,000 tons of six-inch flat concrete for the sum of $36,000. In addition, the contract provided:
Midwest Rail Company to provide two laborers and a hoe ram at our disposal. Material is to be free of any steel that can damage the crusher, such as redi rod, angle iron, flat steel, and anything other than six-inch mesh, which is acceptable. This proposal is subject to John Deere allowing us to use a Cat 988 loader to feed our crusher.
On November 9, 1998, Midwest signed the contract, without change, and Tschiggfrie began its work at John Deere Works. On November 20, 1998, Tschiggfrie determined it had crushed the approximate 8000 tons of concrete as required under the contract, and Rod Tschiggfrie notified Midwest that its work was completed. At least 4000 tons of concrete remained to be crushed at that time, however, and Tschiggfrie offered Midwest to crush it for an additional $18,000. Midwest rejected the offer and hired another contractor to crush the remaining concrete. In taking the position it had fully complied with the contractual requirement to crush approximately 8,000 tons, Tschiggfrie demanded immediate payment. Midwest refused, claiming the contract was an agreement to crush all of the concrete on the project and that it was not based on a particular tonnage.
Tschiggfrie subsequently filed an action against Midwest, alleging a breach of the November 9, 1998, written contract. Midwest responded with an answer and counterclaim, in which it sought damages for (1) the value of the use of its equipment after John Deere Works refused to allow Tschiggfrie to use its Cat 988 loader, (2) repair and maintenance necessary on its equipment, (3) the additional cost of hiring another contractor, and (4) other damages incidental to Tschiggfrie's shutdown of the job site. Following a bench trial, the district court entered judgment in favor of Tschiggfrie in the amount of $63,786 and dismissed Midwest's counterclaim. Midwest appeals.
Standard of review .
Tschiggfrie and Midwest differ on whether this matter was tried at law or equity and thus dispute our standard of review. Tschiggfrie initially filed its petition in equity, but later amended it to allege the petition and all its issues were at law and not in equity. Midwest filed a response to this amended petition, but did not address the law-equity distinction, and the case remained on the equity docket.
We conclude this case was tried at law and that we therefore review for errors of law. Iowa R. App. P. 6.4. Midwest did not address Tschiggfrie's amendment alleging the case to be at law. The remedies sought, recovery of damages, are legal remedies. See Berry Seed Co. v. Hutchings, 74 N.W.2d 233, 237 (Iowa 1956) (noting cases in which the remedy is the mere recovery of money based on breach of contract are usually actions at law). Further, the district court ruled on several evidentiary objections, the "hallmark" of a law trial. Sille v. Shaffer, 297 N.W.2d 379, 381 (Iowa 1980).
Tschiggfrie's recovery under the contract
Based on the contract's clear language calling for approximately 8,000 tons of concrete to be crushed, the district court rejected Midwest's contention the contract required the crushing of all the concrete at the project site rather than the crushing of any particular tonnage of concrete. On appeal, Midwest contends this was a lump sum or "whole job" contract and that Tschiggfrie did not substantially perform its obligation to crush the entirety of the concrete. Midwest asserts extrinsic evidence shows the parties intended the phrase "Approx 8,000 tons, Lump Sum, $36,000" to mean simply a rough estimate of the entire job.
When construing a written contract, we are guided by the rule that the intent of the parties controls and, except in cases of ambiguity, intent is determined by what the contract itself says. Anderson v. Aspelmeier, Fisch, Power, Warner Engberg, 461 N.W.2d 598, 600 (Iowa 1990). Ambiguity exists when, after application of pertinent rules of interpretation to the face of the instrument, a genuine uncertainty exists concerning which of two reasonable constructions is proper. Iowa Fuel Minerals, Inc. v. Iowa State Bd. of Regents, 471 N.W.2d 859, 863 (Iowa 1991). The test for ambiguity is an objective one: is the language fairly susceptible to two interpretations? Id.
In light of the explicit language of the contract calling for "approximately 8,000 tons" of crushed concrete, we agree with the district court's conclusion Tschiggfrie fully performed its obligation under the contract. Substantial evidence supports that Tschiggfrie crushed approximately 8,000 tons. Based on his experience in crushing concrete, Tschiggfrie foreman Tim Hancock determined approximately 8,000 tons of concrete had been crushed. The trial court found Hancock's testimony to be credible and persuasive. See Tim O'Neill Chevrolet, Inc., v. Forristall, 551 N.W.2d 611, 614 (Iowa 1996) (noting it is the trial court's task to weigh the credibility of witnesses). Also, testimony from Dennis Waugh, an engineer who testified for Tschiggfrie, and Ken Buesing, an expert hired by Midwest, supports such a finding. Tschggfrie thus had the right to request payment of $36,000 per the contract. We affirm the district court's conclusion Tschiggfrie fulfilled its obligations under the unambiguous terms of the contract. This contract is not ambiguous, and the district court thus was correct to enforce it as written. See Iowa Fuel Minerals, 471 N.W.2d at 862-63.
Midwest's breaches .
The court additionally concluded Midwest itself breached the contract in various respects. In particular, it found Midwest had not provided the two laborers and an adequate hoe ram as required by the contract. Also, it found the concrete to be crushed was not "free of any steel that can damage the crusher," to which Midwest had agreed. We conclude these findings are supported by substantial evidence in the record as well.
The district court awarded Tschiggfrie additional expenses it incurred by reason of Midwest's breaches. We conclude the district court properly awarded Tschiggfrie these damages. Nonperformance of a duty under the contract is a breach, Metropolitan Transfer Station, Inc. v. Design Structures, Inc., 328 N.W.2d 532, 537 (Iowa Ct.App. 1982), and when a contract has been breached, the innocent party is generally entitled to be placed in a position he or she would have occupied had there been performance. Id.at 535-36.
First, the court awarded Tschiggfrie $6,575, representing the use of a hoe ram and associated services Tschiggfrie had to supply itself when Midwest provided a hoe ram inadequate to perform the concrete crushing task. Second, the court awarded Tschiggfrie $8,690 for the use of its skid loader, which Tschiggfrie was forced to supply to extract metal from the concrete that, by contract, was to be removed by Midwest prior to Tschiggfrie's crushing. Third, the court awarded $3,667, which Tschiggfrie was forced to incur to replace a conveyor belt when the extra metal in the concrete damaged the belt. Finally, the court awarded Tschiggfrie $4,474 to replace its crusher unit because of damage due to the extra steel which was not removed from the concrete. As we find these breaches and damages are supported in the record, we affirm these damages awards. Midwest's counterclaim .
Midwest conceded that an additional amount of $4380 was due Tschiggfrie under a prior contact.
Midwest pleaded a counterclaim in which it sought recovery for (1) additional costs in providing Tschiggfrie equipment and an operator to load the crusher, (2) damages to equipment used by Tschiggfrie, and (3) other costs due to Tschiggfrie's decision to cease work. The court denied all these requests, concluding Tschiggfrie fully performed its contractual obligations and that it was Midwest, not Tschiggfrie, that had breached the contract. We affirm this portion of the district court's judgment.
Substantial evidence supports that there was never an intention for Tschiggfrie to be charged for equipment and labor supplied by Midwest after John Deere refused to allow Tschiggfrie to use its Cat 988 loader. Rod Tschiggfrie testified he accepted the equipment and labor only under the agreement Tschiggfrie was not to be billed for it. There does not appear to be any evidence in the record to substantiate Midwest's claim for "wear and tear" on its equipment. Finally, because Tschiggfrie ceased operations only after it had completed its obligation to crush approximately 8,000 tons, it is not liable to Midwest for any expenditure it made in crushing the remainder of the concrete at John Deere Works.
AFFIRMED.