COURT OF APPEALS DECISION DATED AND RELEASED OCTOBER 1, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1263
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
PHILIP J. TRAYNOR,
Plaintiff-Respondent,
v.
WAYNE T. COOK, SR.,
and
JERRI L. COOK,
Defendants-Appellants.
APPEAL from a judgment
of the circuit court for Pierce County:
ROBERT W. WING, Judge. Affirmed.
MYSE, J. Wayne Cook, Sr., and Jerri Cook, his wife,
appeal a judgment ordering them to pay $1,400 and costs to Philip Traynor as
reasonable compensation for roofing the Cooks' house. The Cooks assert that the trial court erred in finding an implied
contract. Because there is sufficient
evidence of an implied contract, the judgment is affirmed.
In February 1996, the
Cooks requested Traynor to provide an estimate for roofing their house. Traynor estimated that it would cost $1,800
if no waferboard was needed, but $3,000 if waferboard was needed. Waferboard was needed for this roof. The parties, however, never expressly agreed
on a price even though the Cooks told Traynor to begin work and, in fact, were
aware when he began work on their house.
The Cooks also paid Traynor $1,600 before work began and the rest was to
be paid in weekly increments of $100.
The dispute is whether the parties contracted for a new roof for $1,800
and, if not, what the contractor is entitled to for the work done to the Cooks'
home.
The Cooks assert that
because there is no written contract pursuant to Wis. Adm. Code § ATCP 110.05, the trial court could not imply
a contract. This argument fails. First, this issue was not argued to the
trial court. Arguments not made to the
trial court will not be addressed on appeal.
Vollmer v. Luety, 156 Wis.2d 1, 10, 456 N.W.2d 797, 801-02
(1990). Second, violation of this
section does not render the contract unenforceable under an implied contract
theory. This section provides remedies
for consumers but does not affect Traynor's right to recover the reasonable
value of the services provided. As a
result, Traynor may assert his implied contract theory.
Next, the Cooks argue
that there was insufficient evidence for the trial court to find an implied
contract and the remedy of implied contract was not available to Traynor as a
matter of law. Appellate courts will
not reverse trial court findings of fact unless they are clearly
erroneous. Fryer v. Conant,
159 Wis.2d 739, 744, 465 N.W.2d 517, 519-20 (Ct. App. 1990); see also §
805.17(2), Stats. If more than one reasonable inference may be
drawn from the evidence, we must accept the inference that the trial court
chose to draw. Cogswell v.
Robertshaw Controls Co., 87 Wis.2d 243, 250, 274 N.W.2d 647, 650
(1979); see also C.R. v. American Std. Ins. Co., 113
Wis.2d 12, 15, 334 N.W.2d 121, 123 (Ct. App. 1983). This court reviews whether the inferences the trial courts draw
are reasonable. See Hennekens
v. Hoerl, 160 Wis.2d 144, 162, 465 N.W.2d 812, 820 (1991).
An implied contract may
arise from an agreement circumstantially proved, but even an implied contract
must arise under circumstances that show a mutual intention to contract. Kramer v. City of Hayward, 57
Wis.2d 302, 306-07, 203 N.W.2d 871, 873 (1973). The question of the parties' intent to create a contract is a
question of fact. Novelly Oil Co.
v. Mathy Constr. Co., 147 Wis.2d 613, 617, 433 N.W.2d 628, 630 (Ct.
App. 1988). "Recovery in quantum
meruit is allowed for services performed for another on the basis of a contract
implied by law to pay the performer the reasonable value of the services. To establish an implied contract, the
plaintiff must show that the defendant requested the services and that the
plaintiff expected reasonable compensation." Ramsey v. Ellis, 168 Wis.2d 779, 784, 484 N.W.2d
331, 333 (1992) (citations omitted).
In this case, Traynor
demonstrated both elements. It is
undisputed that the Cooks requested services from Traynor, and his estimate for
the work to be done constituted his expectation for reasonable
compensation. Further, the trial court
found that $3,000 was reasonable compensation in light of the cost of materials
and the number of hours Traynor worked on the roof. These findings are amply supported by the record.
Lastly, the Cooks ask
this court to exercise its discretionary power of reversal because the real
controversy has not been tried. After
reviewing the entire record, this court is satisfied that the real controversy
was fully tried in this case and accordingly declines to exercise that
discretionary power. Because this court
concludes there is sufficient evidence to support the finding of an implied
contract, the judgment is affirmed.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.