5 years ago

I n and for the County of Rosebud, - Justia

I n and for the County of Rosebud, - Justia

Pirtz's loss on

Pirtz's loss on the store contract and its reluctance thereafter to enter into a contract with an "upset price." There was testimony and exhibits showing that Hardin Town Pump requested additional work and knew it was performed. There was testimony from a civil engineer that building costs in Colstrip were higher than average and $79,000 was a reasonab1.e charge for the work done. As stated above, a District Court's findings are presumed correct and will not be overturned without a preponderance of evidence showing they are wrong. The record in this case supports the judgment of the District Court. ISSUE NO. 2. Is the award of damages reasonable? Hardin Town Pump's contention on this issue is difficult to discern as the District Court did not award consequential damages for breach of contract. The District Court found that Pirtz had established a valid. lien for work performed on the prefab home. As discussed above in issue no. 1, the District Court determined the contract was for cost plus without a maximum and it required. Hardin Town Pump to pay the balance due, not damages for breach. Section 27-1-311, provides : "For the breach of an obligation arising from contract, the measure of damages, except when otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment which was proximately caused thereby or jn the ordinary course of things would be likely to result therefrom. Damages which are not clearly ascertainable in both their nature and origin cannot he recovered for e breach of contract." The damages awarded merely compensate Pirtz for the detriment it suffered.

Hardi-n Town Pump argues that Pirtz's mechanic's lien is invalid beta-use it was not timely filed. Section 71-3-511 (1) , MCA, states: "Every person wishing to avail himself of the benefits of this part must file, with the county clerk of the county in which the property or premises mentioned in 71-3-501 is situated and within 90 days after the material or machinery aforesaid has been furnished or the work or labor performed, a just and true account of the amount due him, after allowing all credits . . .'I The District Court found tha.t the evidence supported finding the lien valid. Although the last working day for Pirtz was in December 1980, a subcontractor of Pirtz relaid the carpet on April 20, 1981. This is within 90 days of July 9, 1981, when the lien was filed. The lower court was satisfied that laying carpet constituted. material or machinery furnished or work or labor performed. While it is true that performing additional., insubstantial work will not extend the 90 day time limit for filing a lien, this Court will give credence to the lower court's determination that the subcontractors work was substantial if the final work was done to enhance the value of the construction project, not to extend the time of the en. The timeliness ffuestion is a gray area of mechanic's lien law and the facts and circumstances of each case are controlling. Walsh-Anderson Company v. Ke1ler (19611, 139 Mont. 210, 217, 362 P.2d 533, 537. The final work done must be to enhance the value of the construction project, and not be done solely to extend the time of the lien. In this case there was testimony that when Hardin Town Pump complained about the carpeting work Pirtz called a subcontractor back in to correct the poor workmanship. Although not billed, the rework was va.lued at approximately

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