This сase is an instance of what is getting to be chronic litigation between home owner and contractor. The one invariably claims that the contractor agreed to build a house on his lot for sо much money, whereas the other usually insists that the agreed arrangement was that of “cost plus” construction. The parties in cases of such nature rarely reduce their commitments to writing. When they do, apparently inevitable controversies respecting extras and subsequent modifications — occasioned by claimed oral agreement from time to time as work progresses — make up a congeries of trouble for our trial courts.
In the case before us there was no written agreement. The decisive questions before the trial court were (a) whether the original agreement wаs that *288 of a fixed price or otherwise and (b) whether the original agreement, whatever its determined nature, was agreeably modified so as to provide plaintiff with a right of recovery as claimed by him.
Plaintiff Barnes is a building contractor whose principal business is carried on in Antrim county. He operates a lumber yard at Eastport. Originally, and with satisfaction all around, he built a summer cottage for defеndants Beck on Torch lake. After the cottage was finished, and after the Becks had started to use it, Mrs. Beck produced a set of plans, known in the record as the “Better Homes & Gardens Five-Star plan,” and opened negotiations toward construction by plaintiff of a permanent home for defendants on their building lot in Birmingham. According to plaintiff, the agreement finally reached between the parties was that he would furnish materials (at wholesale cost) and labor for construction of the house according to such plans and that the defendants would pay him for his “out-of-pocket expense for these materials and labor in addition to an hourly wage to be paid plaintiff for his own work on the job.”
Plaintiff says that the total cost of such labor and materials, so furnished by him, was $17,450.86; that defendаnts have paid him $11,000 only, and that he is entitled to recover from defendants a computed balance of $6,450.86. Defendants insist that plaintiff agreed to build the home according to-such plans for a total sum of $17,000 “exclusive of painting and decorating,” and that they have paid plaintiff considerably more than what they claim was the agreed contract price.
Construction was duly commenced. The usual disagreements began to appear as estimates and costs parted company according to dismaying postwar building-trade developments. When the job' was near completiоn, financing of a substantial part *289 of the cost of construction was accomplished through a mortgage loan made by the Equitable Life Assurance Society of the United States. To completе the loan, it was necessary that a release and certificate of payment form be signed by the general contractor. Plaintiff executed such a release and certificate but сlaims that it was conditionally delivered by express agreement of the parties, without prejudice to his present claim. To the contrary, defendants insist that its recitals were correct in fact and that there was no conditional or special agreement with respect thereto.
The trial judge found (the case having been tried to the court) that the original agreement between the parties was that of construction of the home for an agreed price of $17,000, exclusive of painting and decorating; that the defendants had paid plaintiff a total of $11,100; that defendants had pаid $5,107.-99 for building materials plaintiff obligated himself to provide as a part of the agreed job; that they had paid various subcontractors of plaintiff a total of $5,661.17, and that they had accordingly paid рlaintiff, for the job so undertaken, a total of $21,869.16. On such finding — recorded later in opinion denying new trial * — the trial judge entered judgment of no cause. Plaintiff reviews in pursuance of Court Buie No 64 (1945) and presents the usuаl question on review of law cases tried without a jury, vis., “That the judgment is against the preponderance of the evidence.”
First:
The tendency in recent years toward waiver of trial by jury, worthy though it may be in the nаme of prompt submission and determination of a law case, points up an apparently continued misconception of our function when nonjury cases arrive for
*290
appraisal under Cоurt Rule No 64. The drumfire of jury arguments
*
delivered here, orally and in brief on review of such cases, suggests that we are not getting through to counsel with previous declarations that we do not hear and consider Rule No 64 cases
de novo (Jones
v.
Eastern Michigan Motorbuses,
Modern science extends an apt illustration. The televised delivery lends a great deal more to the accuracy of belief or disbelief than does the invisible yet audible radio speech of the same рersonality. The latter in turn is relevantly more aidful than the comparably tabescent printed record of utterance. We noted, in
In re Calhoun Estate,
“The trier of the facts in such a matter has an inestimable advantage over thе appellate tribunal. The hesitant word and the averted glance stand on a parity, on the printed page before us, with the positive assertion and the forthright expression. * Not so in the mind and conscience of the nisi prius judge. He makes his appraisal of truth or falsity upon an evaluation of all the elements visible and audible, and while cases may occur in which his disregard for the clear preponderance is manifest even in these chambers, this case is not one of them.”
We write here, not alone for this case of Barnes but for the increasing numbers of cases brought to us under said Rule No 64. The place for powered emphasis on what each party claims
should be
the facts is in our trial courts. When the facts are found there and review of the judgment takes place, we consider alleged errors of law only and do not, as has been urged (see
In re Hoffman’s Estate,
Second: Turning now to the case before us:
We have previously noted the general findings of the trial judge. He was influenced in arriving at decision that plaintiff should not recover by defendant Lawrence H. Beck’s testimony that the agreed *292 construction price was $17,000 (exclusive of painting and decorating); by an admission of plaintiff “that he was paid up to date” when plastering of the home was completed; by testimony that plaintiff regularly told defendant Lawrence H. Beck, as work progressed, that “we are right about where we ought to be” (with respect to cost of construction); by conclusion that “it is inconceivable to this court that plaintiff could possibly have expended $9,776.99 * * * for materials after all the plastering was completed;” by the fact of plaintiff’s having signed the mentioned release and certificate (reciting that “all labor and material, except labor of bricklayer, has been paid in full”), and finally (with respect to the original agreement of the parties) by plaintiff’s testimony, when denying he had quoted a price of $17,000 to defendants, that he “couldn’t recall whether he mentioned price at all.”
The recоrd discloses arguable testimony and inference supporting and opposing Judge Brown’s findings as outlined. We are consequently obligated to rule that the judgment entered on such findings passes muster as against plaintiff’s challenge.
Affirmed, with costs to defendants.
Notes
We accept the belated finding for present purposes
(Morley Brothers, Inc.,
v.
F. W. Patterson Construction Co.,
By the expression “jury argument” we refer, of course, to the required nature of summations before petit juries and trial judges distinguished from arguments of points of law in appellate courts. Eaeh lias its place. One is made in the forum where the credibility of witnesses is weighed and disputed questions of fact are settled. The other is presented upon a kiln-dried record of proceedings at law, brought to a higher court for determination of questions of law. Thus, whether a judgment is contrary to the сlear preponderance of the evidence “is a question of law rather than one of fact”
(Jones
v.
Eastern Michigan Motorbuses,
Mr. Justice Burton Ras the right expression for that which is before the trier of facts. He calls it “the living record” and points out that the trial judge’s aрpraisal of such record is entitled to proportionately more reliance, rather than less, the farther the reviewing court is removed from the seene of trial
(Von Moltke
v.
Gillies,
The joint committee (judicial conference and State bar) on Michigan procedural revision is presently considering a somewhat similar report, not as yet published.