from the Iowa District Court for Grundy County, David P.
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
A. Swanson (until withdrawal) and Nathan J. Schroeder (until
withdrawal), Waterloo, for appellee.
Considered by Vogel, P.J., Doyle, J., and Blane, S.J.
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.
Background Facts and Proceedings.
a farmer, wanted a pole barn constructed on his land.
Sometime in 2012, he contacted Harberts,  an experienced
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
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.
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.
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.
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.
chose the overhead doors on November 1; he was told it would
take seven to eight weeks for the doors to be delivered. On