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DR. KELLY E. HUTCHINS, et al. v. PAGE CONTRACTORS

OCTOBER 07, 1987

DR. KELLY E. HUTCHINS, et al.
v.
PAGE CONTRACTORS, INC.



BEFORE HAWKINS, P.J., ANDERSON and GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

This case, concerning an agreement to build a house, comes to the Court from the Circuit Court of Jones County, Mississippi. The lower court, following a jury verdict in favor of plaintiff Page Contractors, Inc., entered an order to enforce a lien against the property in the instant action in the amount of $76,000 against defendants Dr. Kelly E. Hutchins, et al., together with interest and court costs. The court further ordered that the Clerk of the Circuit Court of Jones County be appointed

to conduct a sale of the property. Hutchins, et al. filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial or a remittitur. This the lower court denied, and Hutchins, et al. subsequently appealed. We affirm.

 On August 29, 1983, Page Contractors and Dr. Kelly E. Hutchins entered into a written contract to build a home for appellants in Laurel, Mississippi. As a part of that contract, appellee agreed to construct the residence according to the plans, specifications and agreements for a total cost not to exceed $268,007.41; however, appellant was to pay cost plus ten percent (10%) for any additions discussed and agreed upon prior to the work being done. Appellee prepared a general cost sheet, attached to its complaint, which became a part of the contract.

 During the construction of the house a dispute arose as to what changes were made in accordance with the terms of the contract, as well as the amount and cost of the labor involved in the overall project. Having only received approximately $227,000 of the total bill due (alleged by appellee to have reached over $300,000),

 Page Contractors halted construction of the house pending

 receipt of past due amounts from invoices previously submitted to appellants. Appellee recommenced construction following legal advice, and all parties agree the house was near completion at the time the action was filed, except appellants make claim for some few items of incompletion.

 At trial, Page Contractors claimed that among the numerous changes to the original contract agreed upon by both sides were the type of entrance doors selected, the quality of the paneling, the flooring, the studs for the walls, the gutter material, an increased size of the driveway and patio area, the type of carpet selected, the type of wallpaper, and various other items. Included in these changes were problems encountered by altering the size of the driveway and the studs originally selected for the walls. The total increase in cost claimed by appellee was $83,264.16. Appellee offered evidence to show that no claim was made for some items as a conciliatory gesture.

 Dr. Hutchins and his wife admitted to some changes made in accordance with the original agreement, but denied others. As a part of their counterclaim filed against appellee, Dr. Hutchins, et al. alleged, among other things, breach of contract by Page Contractors for changes made

 and not agreed upon, as well as defective workmanship in the construction of their home. Hutchins, et al. claimed that most of the items listed by Page Contractors which increased the cost of the original contract were not agreed upon prior to their installation in the house and further that they were due credit under the contract for items they had purchased themselves. These changes included credit for lighting and plumbing fixtures, ceramic tile and certain hardware. Other credits claimed pertained to changes altering the type of material chosen, which allegedly decreased the overall cost of constructing the house. Among these were the type of roof selected and the type of brick used. Too, Hutchins, et al. claimed credit for certain unfinished items; among these were the shutters for the house not yet in place at the time the cause came to trial.

 At the conclusion of the trial, Page Contractors made a motion outside of the presence of the jury for a view of the premises, which the trial court granted. A view was subsequently taken.

 On appeal, Hutchins, et al. allege error in the granting of this motion, as well as in the admission of evidence pertaining to the disputed changes, the granting and denial of certain instructions to the jury, etc. This is a textbook case for the triers of fact and we decline to address the numerous errors assigned.

 First, we hold that the disputed changes were properly submitted to the jury. Whether or not such changes were made in accordance with the contract was a factual issue and was for the jury to decide. Aron v. Panola-Quitman Grain Corp., 490 So.2d 891 (Miss. 1986); Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss. 1975).

 Next, we find that the instructions given to the jury, taken as a whole, are an adequate guide in construing the contract. Byrd v. F. S. ...


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