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Bertram v. Harberts

Court of Appeals of Iowa

July 19, 2017

DAVID BERTRAM, Plaintiff-Appellant,
v.
JAMES HARBERTS d/b/a EXCLUSIVE CONTRACTING L.L.C., Defendant-Appellee.

         Appeal from the Iowa District Court for Grundy County, David P. Odekirk, Judge.

         The plaintiff appeals from part of the district court's ruling on a breach of contract case.

          Michael McDonough, Jacob W. Nelson, and Crystal R. Pound of Simmons Perrine Moyer Bergmann PLC, Cedar Rapids, for appellant.

          Chad A. Swanson (until withdrawal) and Nathan J. Schroeder (until withdrawal), Waterloo, for appellee.

          Considered by Vogel, P.J., Doyle, J., and Blane, S.J. [*]

          BLANE, SENIOR JUDGE.

         David Bertram appeals from the district court's ruling in an action involving claims and counterclaims for breach of contract. Bertram challenges the district court's conclusion he materially breached the written contract into which he and the defendant, James Harberts, d/b/a/ Exclusive Contract, L.L.C., entered. Additionally, he challenges the district court's ruling regarding damages.

         I. Background Facts and Proceedings.

         Bertram, a farmer, wanted a pole barn constructed on his land. Sometime in 2012, he contacted Harberts, [1] an experienced builder.

         After some back and forth regarding proposals and estimates, Harberts completed a written contractor's agreement on June 3, 2013, and submitted it to Bertram. The parties signed the agreement on June 25. The agreement provided Harberts would build an 80 foot by 105 foot pole barn, complete with concrete floors, spray-foam insulation, and the framing for a number of interior walls and doorways. The total cost-$265, 210.00-included the necessary supplies and labor. Bertram, by the terms of the agreement, was to initially pay Harberts "$172, 386.50 (reflecting 65% of total cost) . . . before work beg[an]. After assembly and construction of [the] building[], a predetermined amount of $66, 302.50 (reflecting 25% of total cost) [was to] be paid to the Contractor. After interior floor installation ha[d] been completed, a predetermined amount of $26, 521.00 (reflecting 10% of total cost)" was to be paid to Harberts. The contract also specified what Harberts was not responsible for, including the large "overhead doors and openers, " among other things.

         Bertram maintained he and Harberts had also agreed orally, before signing the contract, both that Harberts would have the building completed "by winter" and that Harberts would keep the money Bertram gave to him for the project in a separate account. Harberts agreed he gave Bertram a projected completion date and that he hoped to have the project completed by winter, but he disagreed that the completion date was a contractual term. Additionally, Harberts testified he never told Bertram his money would be kept separate from the money Harberts' business was receiving for other projects. Bank records introduced at trial showed that Bertram's money was deposited into Harberts' business account, along with the funds for other projects.

         Bertram made the first payment to Harberts of $172, 386.50 on or about the day the contract was signed. Harberts began construction at some point in early July. The building itself was up by October 21, 2013, at which time Harberts requested the second installment payment. Bertram made the second payment of $66, 302.50.

         Around the same time the building was finished, Harberts and Bertram had a discussion about the large overhead doors. Bertram had yet to pick or order the doors, and he had neither hired someone to complete nor personally completed the work that had to be done before the doors could be installed- tasks that were his to undertake and were not within the contract. Harberts advised Bertram he would not complete the insulation or concrete work until after the doors were installed.

         After the second payment was made, Harberts and Bertram agreed Harberts' company would complete certain "extras" for Bertram, including installing the liner panel and doing some work that had to be completed for the overhead doors to be installed.

         Bertram chose the overhead doors on November 1; he was told it would take seven to eight weeks for the doors to be delivered. On ...


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