JOHN D. AHRENS, Individually and d/b/a/ OUTLAW DREDGING COMPANY, Plaintiffs-Appellants, vs. GEORGE AXMEAR, Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 8-868 / 07-1863
Filed April 22, 2009
JOHN D. AHRENS, Individually and
d/b/a/ OUTLAW DREDGING COMPANY,
Plaintiffs-Appellants,
vs.
GEORGE AXMEAR,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Poweshiek County, Annette J.
Scieszinski, Judge.
John D. Ahrens appeals the dismissal, following trial to the court, of his
lawsuit seeking money damages from George Axmear. AFFIRMED.
Jeffrey Garland, Hailey, Idaho, for appellants.
Jane Odland of Walker & Billingsley, Newton, for appellee.
Considered by Vogel, P.J., and Miller and Doyle, JJ.
2
MILLER, J.
John D. Ahrens appeals the dismissal, following trial to the court, of his
lawsuit seeking money damages from George Axmear. We affirm the judgment
of the district court.
George Axmear leased a dredge from John D. Ahrens’s father to assist in
pumping out a dairy-farm manure lagoon in Iowa in late 2004. When the dredge
proved to be too small to perform its intended function, Ahrens’s father
suggested Ahrens, whose business was located in Indiana, as a possible source
for a larger dredge.
Axmear needed to dredge immediately, as it was November and cold
weather would soon prevent him from doing the job. He contacted Ahrens, and
they reached an oral agreement that Ahrens would lease a dredge to Axmear.
The agreement, among other things, required Axmear to insure the dredge while
in his possession and to return it in the same condition as when received, normal
wear and tear excepted.
Ahrens provided the dredge and Axmear began using it.
equipment failures occurred and repairs were required.
Certain
The dredge shortly
proved unable to perform as hoped. Axmear used it for only about six days and
then had it pulled out onto a grassy area near the edge of the lagoon. Ahrens
agreed to leave the dredge in Iowa for possible use in the spring of 2005.
Axmear, perhaps believing that insurance he had procured on Ahrens’s
father’s dredge had been transferred to Ahrens’s dredge, failed to acquire
insurance for Ahrens’s dredge. Axmear did not use the dredge in the spring of
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2005, and arrangements were made to have it picked up in March and returned
to Indiana. The ground near the dredge was too soft to allow the crane that was
to load it onto a semi-trailer to get close enough to do so. Persons employed by
Axmear undertook to move the dredge closer to a driveway or roadway where
the crane and semi-trailer were located. In doing so, the bucket of an end loader
being used to move the dredge made contact with one of the dredges pontoons.
The evidence is in conflict as to whether the contact dented the pontoon, caused
a “crease” in it, or made a hole in it.
After the dredge was returned to Indiana a dispute developed between the
parties concerning the nature and extent of any damage to the dredge’s pontoon.
Ahrens at some point also claimed that, in addition to damage from the end
loader, Axmear’s handling of the dredge had damaged the bottoms of the
pontoons. Axmear apparently pursued a claim under an insurance policy he
thought covered the dredge, but in fact did not.
An insurance adjuster
investigated and took photos. According to witnesses who testified at trial, the
photos do not reveal a hole. Further, the investigation did not reveal any damage
to the bottoms of the pontoons.1
Following several communications about their dispute, the parties agreed
to meet in Iowa in an attempt to resolve their differences.
They met on
December 30, 2005. Ahrens brought an attorney with him to the meeting. The
parties reached an agreement, drafted by Ahrens’s attorney. In its entirety the
handwritten agreement provides:
1
The adjuster’s photos do not include photos of the bottoms, and the adjuster may not
have inspected the bottoms.
4
Agreed this 30th day of December 2005, at Montezuma, Iowa:
To resolve our dispute concerning the damage to John’s dredge,
George agrees to pay repair costs, not to exceed $14,000.00
(fourteen thousand dollars), directly to the repair shop when the
repairs are completed and immediately upon receipt of the repair
shop’s invoice.
For his part, John will pay all transportation and crane costs, and
any repair costs in excess of the fourteen thousand dollars which
George has agreed to pay.
George and John also agree that pictures of the damaged areas
will be provided to George, plus pictures of the repairs.
Both John D. Ahrens and George Axmear signed the agreement, dated “12-3005,” before leaving their meeting.
In very early March 2006, Axmear received an invoice by mail from Matt’s
Repair, Inc., of Lowell, Indiana. The invoice showed a charge of $15,060.00 to
Ahrens’s business for “Labor to repair 1996 Versi-dredge, model #5012, as
Instructed” with $1060.00 paid and a balance due of $14,000.00. Axmear had
received no pictures of any damage or repairs, continued to doubt that he had
caused or was responsible for any significant damage to the dredge, and
doubted that the represented repairs had been or would be made. He drove to
Indiana to check on the purported damage and repairs. When he appeared at
Matt’s Repair and inquired about the bill they had sent to him, he was told there
was no bill for him to pay.
While in Indiana Axmear called Ahrens in an attempt to view the dredge
and see the purported repairs. Ahrens would not tell Axmear where the dredge
was located, informed him it was being used, and told him he could not see it.
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As shown by Ahrens’s own testimony, the purported repairs had not in fact been
made.2
Ahrens did not provide the pictures of damaged areas and repairs as
required by the parties’ December 30, 2005 agreement. Axmear did not pay for
the purported repairs. Ahrens brought this lawsuit against Axmear. He claimed,
among other things, that Axmear breached the parties’ November 2004 oral
contract for the lease of the dredge, and that Axmear breached the parties’
December 30, 2005 settlement agreement.
The district court concluded that the parties’ December 30, 2005
agreement constituted an “accord.” We agree. See In re Estate of Buss, 577
N.W.2d 860, 862 (Iowa Ct. App. 1998) (“An accord is an agreement in which the
parties agree to discharge a preexisting contract or obligation by giving and
accepting a substituted consideration in settlement of the claim.”). The court
found that Ahrens had failed to comply with the terms of the accord, and
concluded that he therefore was not entitled to enforce the agreement. Ahrens
appeals. His claims of error are largely that certain findings of fact by the district
court are not supported by substantial evidence.
Our review in this law action is for correction of errors of law. Iowa R.
App. P. 6.4; Fausel v. JRJ Enterprises, Inc., 603 N.W.2d 612, 617 (Iowa 1999).
The district court’s findings of fact are accordingly binding on us if supported by
substantial evidence. Iowa R. App. P. 6.14(6)(a); Fausel, 603 N.W.2d at 617.
“Evidence is substantial when a reasonable mind would accept it as adequate to
2
Ahrens did testify that repairs were made later, in the late summer of 2006 and the
spring of 2007.
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reach a conclusion.” Arnevik v. Univ. of Minn. Bd. of Regents, 642 N.W.2d 315,
318 (Iowa 2002).
The district court found, in part: “It is not proven what, if any, damage
Axmear caused to the dredge.” Ahrens first claims this finding is not supported
by substantial evidence.3 As noted above, the evidence is in conflict as to the
nature and extent of damage to the pontoon caused by contact made by the end
loader. Although some evidence suggests the contact caused a “hole” in the
pontoon, an equal or greater amount of evidence, apparently found credible by
the trial court, indicates the contact caused only a dent or “crease.”
Other
evidence indicates that some denting of the pontoons occurs as part of the
normal wear and tear that happens during use or transportation. We read the
district court’s finding, as it relates to any damage to the pontoon caused by the
end loader, to mean that Ahrens did not prove that any such damage went
beyond normal wear and tear. We conclude this finding, as it relates to damage
to the pontoon caused by the end loader, is supported by substantial evidence.
Ahrens’s argument in support of this claim also briefly mentions the
purported damage to the bottom of the pontoons. Ahrens did testify that Axmear
had caused holes in the bottoms of the pontoons. Testimony also shows that
holes in the bottoms of the pontoons would cause the dredge to list or sink.
Ahrens testified that in March 2006, when Axmear was in Indiana attempting to
3
As previously noted, the district court concluded that the parties December 30, 2005
agreement constituted an accord, a conclusion with which we agree. The finding in
question would appear to be relevant to Ahrens’s claim of breach of the parties’ oral
agreement and mere surplusage concerning his claim that Axmear breached the later,
written settlement. We nevertheless choose to address this claim, finding no merit to it.
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see the dredge, any pictures, and the purported repairs, the dredge was being
used. Any such use was well before Ahrens’s testimony indicates that most of
the purported repairs were made in the summer of 2006 and were completed in
the spring of 2007. Further, inspection by the insurance adjuster in April 2005
had not revealed any holes in the bottoms that Ahrens claims existed upon the
dredge’s return. We conclude the court’s finding, as it relates to damage to the
pontoon bottoms, is supported by substantial evidence.
The district court found, in part: “In fact, the repairs [to the dredge’s
pontoons] had not been made.” Ahrens claims this finding is not supported by
substantial evidence.
When read in context, this finding clearly relates to the time when Axmear
visited Matt’s Repair in early March 2006.
Ahrens himself testified that the
purported repairs were made in the summer of 2006 and spring of 2007. The
court’s finding is fully supported by the evidence.
The district court found, in part: “[I]t is not credibly shown that any repair
of the alleged damage has been completed.” Ahrens claims this finding is not
supported by substantial evidence.
Ahrens did testify that the repairs in question were made in late summer of
2006 and spring of 2007.
However, under the parties’ written settlement
agreement Ahrens was obligated to provide photographic evidence of the
claimed damage and Axmear was obligated to pay for the repairs “when the
repairs are completed.” Matt’s Repair, apparently at the instigation of Ahrens,
sent an invoice for the purported repairs at a time when, even according to
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Ahrens’s own testimony, the repairs had not been made. Ahrens refused to
allow Axmear to view and inspect the alleged damage when Axmear was in
Indiana and attempting to do so. There is no evidence that Ahrens later offered
an opportunity for Axmear to do so. Ahrens testified that he had photographs of
the damage and repair work, but failed or refused to provide them to Axmear as
called for by the parties’ agreement. He sold the dredge, but was unable or
unwilling to identify the buyer and Axmear thus could not inspect it even after
Ahrens had sold it.
In making the finding in question the district court clearly considered the
question of credibility, finding it had not been “credibly shown that any repair of
the alleged damages had been completed.” (Emphasis added.) The district
court’s opportunity to evaluate credibility of witnesses is better than ours, and
factual disputes depending heavily upon such credibility are best resolved by that
court. Tim O’Neill Chevrolet v. Forristall, 551 N.W.2d 611, 614 (Iowa 1996).
Giving due deference to the district court’s credibility determination, we conclude
substantial evidence supports the finding in question.
The district court found, in part:
“Ahrens has never provided the
photographic documentation [of the damage and repairs] he agreed would be a
predicate to Axmear’s payment of up to $14,000 for repairs.” Ahrens claims this
finding and the court’s conclusion that Axmear had no obligation to pay for
repairs because Ahrens had not furnished Axmear with photographs of the
damage and repairs “is not supported by substantial evidence and is legally
incorrect.” In his arguments in support of his claim Ahrens presumes the court
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meant “condition precedent” by its use of the word “predicate.” We can find no
standard or legal dictionary that defines the word “predicate” as a “condition
precedent.” We will, however, initially assume the district court so intended, as
Axmear does not argue the contrary.
For the following reasons we find no
reversible error on this issue.
First, by the time of the parties’ December 30, 2005 agreement a
substantial dispute existed as to the nature and extent of damage, if any, caused
to the dredge by Axmear. As shown by the evidence presented at trial, Axmear
had valid reasons to question whether any substantial damage beyond ordinary
wear and tear had occurred. Under such circumstances it would appear logical
that he would want and expect the photographic evidence of damage and repairs
before he made payment. The parties’ written agreement does not purport to be
an integrated contract that includes all of the terms of their agreement, thus
leaving open the question of whether providing the contemplated photographs
was a condition precedent.
“Contract interpretation involves ascertaining the
meaning of contractual words, and extrinsic evidence is admissible as an aid to
interpretation when it sheds light on the situation of the parties, antecedent
negotiations, the attendant circumstances, and the objects they were striving to
attain.” Kroblin v. RDR Motels, Inc., 347 N.W.2d 430, 433 (Iowa 1984). Axmear
in fact testified, without objection, that receiving the contemplated photographs
was a condition of his obligation to make payment. Under the circumstances
presented we cannot conclude that a finding by the district court that Ahrens
providing the contemplated photographs was a condition precedent to Axmear’s
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obligation to pay, if that in fact is what the court meant by its finding, is
unsupported by substantial evidence.
Second, in his brief on appeal Ahrens states he understood that his
obligation to provide the photographs “would have been a concurrent one.”
Consistent with that belief, he testified that in his opinion Axmear was to be given
“the pictures at the exchange.”
Ahrens argues that Axmear repudiated the
December 30, 2005 agreement “before the repairs were completed”4 and
therefore any duty on his part to provide the photographs was excused. The
district court concluded that although there was an “accord” the evidence failed to
show any “satisfaction,” “due to Ahrens’ own failure to perform under the
settlement agreement.” Ahrens testified he “had photos” but “threw them away”
because Axmear repudiated their agreement.
However, Axmear testified he
never told Ahrens he would not honor their settlement agreement and he
remained willing to pay if provided the contemplated photos showing damage
and an invoice showing the repairs had been made.5
The district court
apparently credited Axmear’s testimony that he did not repudiate the agreement
as claimed by Ahrens. Thus, even if Ahrens’s obligation to provide photographs
was only an obligation concurrent with Axmear’s obligation to pay, the court’s
finding is supported by substantial evidence. Giving due deference to the court’s
4
We note that, to the contrary, Ahrens testified that, “When I called George and told him
that the repairs were substantially done . . . , he told me he changed his mind. . . .”
(Emphasis added.)
5
Axmear had not been provided any invoice other than the one sent when repairs had
admittedly not been made.
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credibility determination, we cannot conclude that the district court erred in its
conclusion that Ahrens breached the parties’ accord.
Finally, Ahrens claims that Axmear requested only pictures to confirm
repair of damage to the bottom of the dredge and thus waived any condition
concerning pictures of damage to the sides of the pontoons. We do not believe
this issue was presented to or passed upon by the district court, and thus it
appears it was not preserved for our review. Further, the record simply does not
support the claim that the request for, or agreement concerning, photographs
was so limited.
Finding no merit to the claims of error, we affirm the judgment of the
district court.
AFFIRMED.
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