Dale Moore v. Sallye Hof

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION I

CA00-274

FEBRUARY 28, 2001

DALE MOORE APPEAL FROM THE BENTON

COUNTY CIRCUIT COURT

APPELLANT [CIV98-32-1]

v.

HONORABLE TOMMY J. KEITH

SALLYE HOF CIRCUIT JUDGE

APPELLEE

AFFIRMED

Appellant brings this appeal contending that the trial court erred in dismissing his breach of contract claim against Sallye Hof. We find no error and affirm.

Sallye Hof contacted appellant in May 1997, about constructing a fence to surround her home in Benton County, Arkansas. The parties originally contracted for appellant to build a wood and chain link fence for a price of $6,259.00. Hof signed a purchase order dated May 26, 1997, indicating her agreement to pay for the fence. According to appellant, Hof made five or six changes to the design of the fence between May 1997 and December 1997, resulting in a final price of $24,326.00. Hof conceded that she changed the design of the fence, but stated that she made only one design change and appellant told her that the new fence would cost $13,668.00.

Appellant testified that when he and Hof entered into the initial agreement, Hof paid him $3,130.00 as a down payment. According to appellant, after he and Hof entered into the agreement but before he began construction, Hof changed the design from a wood and chain-link fence to a six-foot wooden fence. Appellant stated that he gave Hof a second estimate of $13,668.00 for the wooden fence and that she paid an additional $3,300.00 down payment. Hof introduced a copy of the second estimate. Hof also introduced a drawing dated June 30, 1997, diagraming her second fence design. The diagram indicates that the fence would include sways and a trellis. The diagram also shows a price of $13,668.00. According to appellant's testimony the sways and the trellis were added to the drawing after June 30.

During construction, the parties learned that a portion of the fence encroached upon a neighbor's property. Appellant removed the portion of the fence that encroached upon the neighbor's property and then subcontracted with Thomas Fence Company to complete the remainder of the fence. The agreement between appellant and Thomas Fence Company provided that Thomas Fence Company would provide all materials and labor for a total price of $10,055.79. Thomas Fence Company completed the fence in December 1997, and appellant subsequently billed Hof for $24,326.00 less the amount that he had been paid as a down payment.

According to appellant, he sent the bill to Hof by one of his employees. Hof did not pay the bill, but requested that the employee ask appellant to send her an itemization of the charges. Hof did sign the bill however. Appellant testified that he called appellee to tell herthat he would be sending over the itemization the following day. Appellant testified that he sent an employee to Hof's residence the following day with the itemization. Appellant stated that he spoke with Hof again and she told him that she would have a check for him the next day. When appellant tried to collect, however, Hof refused to pay. Hof disputed appellant's testimony regarding the bill. She testified that she only signed the bill as proof that she had received it, but that she never agreed to pay appellant $24,326.00 when he had agreed to construct the fence for $13,668.00.

Appellant filed suit seeking damages in the amount of $17,696.00, a total arrived at by subtracting the total down payment of $6,430.00 from, $24,326.00 Thomas Fence Company intervened in the suit and filed a third party complaint seeking to recover $10,055.79. Because the appellant and appellee agreed that Thomas Fence Company had not been paid and appellant agreed that he owed Thomas Fence Company $10,055.79, the trial court granted Thomas Fence Company's motion for summary judgment. The court ordered Hof to pay that amount to Thomas Fence Company and noted that she would receive credit for that amount if it later concluded appellant was due damages. At the bench trial the trial court subsequently dismissed appellant's case, concluding that appellant had not presented prima facie evidence of a contract valued at more than $13,668.00 From that ruling comes this appeal.

Appellant urges that the trial court's finding that the parties agreed to a contract whereby appellant would construct a fence with sways and a trellis and appellee would pay $13,668.00 was clearly against the preponderance of the evidence. We disagree.

To establish the existence of a contract, a party must show: 1) competent parties; 2) subject matter; 3) legal consideration; 4) mutual agreement; and 5) mutual obligations. Moss v. Allstate Ins. Co., 29 Ark. App. 33, 776 S.W.2d 831 (1989). A contract may be modified but both parties must agree to the modification and its terms. Id.

The question presented by this appeal is whether the evidence supports the trial court's conclusion that no meeting of the minds occurred to establish a contract for $24,326.00, but that a meeting of minds did occur previously and was memorialized in the drawing dated June 30, 1997, that includes mention of sways and a trellis and a total price of $13,668.00. A meeting of the minds does not depend upon the subjective understanding of the parties, but instead requires only objective manifestations of mutual assent for the formation of a contract. Thurman v. Thurman, 50 Ark. App. 93, 900 S.W.2d 221 (1995). The meeting of minds, which is essential to the formation of a contract, is determined by the expressed or manifested intention of the parties. Dziga v. Muradian Bus. Brokers, Inc., 28 Ark. App. 241, 773 S.W.2d 106 (1989). The question of whether a contract has been made must be determined from a consideration of the parties' expressed or manifested intention - that is, from a consideration of their words and acts. Id.

Here, the only real evidence admitted to establish that Hof agreed to pay the amount finally charged by appellant is the invoice that includes her signature. The invoice is identical to the first invoice Hof signed listing a price of $6,259.00 Appellant argued below that when one juxtaposes the fact that Hof agreed that the first invoice created a contract with the fact that she later signed an identical document stating the price of the fence was$24,326.00, it becomes apparent that Hof knew that she was entering a second contract when she signed the second invoice. Hof responded that she only signed the second invoice as proof of receipt and not as an assent to its terms.

Having appellee's testimony before it, the trial court determined appellant presented no evidence that a contract for an amount other than $13,668.00 existed. It appears that prior to the construction of the fence, the only writing in existence was the drawing showing sways and the trellis listing a price of $13,668.00. The only intentions manifested by the parties prior to completion of the fence were that they would abide by the June estimate. This testimony supports the trial court's determinations that the parties agreed to a construction of the fence for $13,688.00 and that they did not agree to modify the agreement.

Affirmed.

Robbins and Griffen, JJ., agree.