#### Breithaupt, Appellee, *v.*McGinnis et al., Appellants.

(No. 3949

Decided February 5, 1947.)

*306
      *Mr. Daniel E. Bevis,*for appellee.

*Mr. Henry A. Beinhard*and *Mr. Henry L. Holden,*for appellants.

'By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franldin county, Ohio. The notice of appeal states that “said appeal is on questions of law and law and fact.” Counsel have'considered the appeal as one on questions of law and we so regard it.

The plaintiff, appellee herein, brought an action to recover from defendants, appellants herein, the balance due on an oral agreement to construct an addition to, and for remodeling the residence owned by the defendants, and to foreclose a mechanic’s lien on the property. In his amended petition the plaintiff alleged that he was to be compensated on the basis of labor performed and material furnished; that he was to receive $1.25 per hour for his services as a carpenter, and for his services in preparing plans, purchasing materials and superintending the work, a commission of ten per cent of the total cost of labor and materials necessary to complete the work. Plaintiff claimed there was a balance of $844.50 due him under the contract.

The defendants filed an answer and cross-petition. In their answer they pleaded a general denial, and in their cross-petition the defendants claimed damages, alleging that the plaintiff entered into an oral contract -to construct the building and remodel the residence for the sum of $4,392; that the total cost greatly exceeded that amount; that the plaintiff failed to complete the work; and that a part of the- work done by the plaintiff was defective which required an additional expenditure on their part, all to their damage in the sum of $2,500.

The case was tried to the court without the intervention of a jury. The trial judge made a' personal inspection of the premises. The trial court found the *307defendants were entitled to damages in the amount of $300, and that after deducting the $300 from the plaintiff’s claim he was entitled to judgment in the sum of. $544.50. The court found that amount to be a valid lien on the premises and ordered the lien foreclosed in default of payment of the judgment.

The defendants assign as error:

(1) That the finding of the court is against the manifest weight of the evidence;

(2) That the,finding of the court is not sustained by sufficient evidence; and

(3) That the finding of the court is contrary to law.

The undisputed evidence shows that ■ the plaintiff and defendants did enter into an oral agreement whereby the plaintiff agreed to construct a building adjacent to the residence owned by the defendants and to make certain changes in the old structure which changes were required to connect the two structures; that as the work progressed bills for material and labor claims were presented to Mrs. McGinnis who promptly paid them by check; that during the progress of the work substantial changes were made in the plans for the new structure and additional improvements were made in the old structure which had not been considered by the parties at the time the agreement was entered into; that as the work neared completion the defendants had paid approximately $9,000 for labor and material; that the defendants refused to make further payments; and that thereupon the plaintiff filed his lien and shortly thereafter brought this action.

The plaintiff testified that the parties agreed the ■defendants should assume the position of contractor, pay for all material furnished and labor performed and pay the plaintiff his customary ten per cent commission for his services in preparing plans, purchasing the materials and superintending the work. In sup*308port of that contention the plaintiff points ont that the, defendants did pay bills for material and labor as the work progressed, and agreed to pay the final labor bill presented in the amount of $303 if the plaintiff would repair a leak.

On the other hand, the defendants testified that the plaintiff agreed to build for an agreed price' but were rather uncertain as to the exact price, sometimes claiming it to be $4,392 and at other times they testified that they did not expect the price to exceed $5,000 or $5,500. In support of their contention they introduced the application filed by Mrs. McGinnis with the War Production Board showing the estimated cost to be $4,392. The plaintiff testified that this amount was hurriedly estimated and was not intended by the parties to cover the total cost of construction, but was only at best an estimate of the cost. The plaintiff contends further that after the application was presented to the War Production Board the plans for the new structure were changed and substantial improvements were made in remodeling the old structure, the cost of which Avas not embraced in the estimate. The defendants produced a receipt which reads as follows:

“Jan. 20,1944:

“Received from Olive W. McGinnis

One Hundred........... Cash............Dollars for ................ Owe $303 ...............$100

“Edw. Breithaupt.”

Also a memorandum was introduced as follows:

“Ed. Breithaupt $353.00

“Pd. Bohanan Plumber 50.

“ 403.00

“ 100.

“ 303.”

*309These exhibits are presented by the defendants to refute the claim of the plaintiff that there was due him at the completion of the work the sum of $844.50. The plaintiff testified that on January 20, 1944, the balance due of $303, shown by the receipt, represented the bal-' anee then due for labor only, and that thereafter he did more work on the job increasing the labor claim to $344.50. When the work was completed he entered on his books and added to the labor claim the sum of $500 for commission for his services in preparing the plans, furnishing material and superintending the work.

The evidence in this case is clearly and definitely in conflict. The trial judge was required to weigh the evidence and determine which witnesses were most worthy of belief and in the light of human experience determine which items of testimony were the most reasonable and plausible. The trial court found the conduct of the defendants was inconsistent with their contention that the plaintiff agreed to build for a definite price. The court was careful to point out that the defendants paid promptly material and labor claims while the work was progressing, in an amount far in excess of the price which they claim had been agreed upon, and that the defendants did so without protest. Furthermore, the court found, and we aro convinced that the evidence supports the finding of the trial court, that the defendants acquiesced in and approved of all changes in the plans, with respect to both the new and old structures.

A reviewing court will not reverse the- judgment of the trial court on the weight of the evidence unless the judgment in the light of the evidence adduced is of such a character as to shock the conscience of the court to permit it to stand. A judgment should not be reversed if it appears on the face of the record that dif*310ferent minds could have reasonably arrived at different conclusions or unless it appears that a manifest injustice will result to allow the judgment to stand.

See *Finney*v. *Morehouse,*27 Ohio App., 499, 161 N. E., 293; *Kaiser*v. *Whetstone,*33 Ohio Law Abs., 432, 35 N. E. (2d), 465, decided by the Second District Court of Appeals. See, also, 2 Ohio Jurisprudence, 752, Section 663 and page 761, Section 667, and authorities •cited thereunder.

After a consideration of all the evidence the court •concludes that different minds might have reasonably arrived at different conclusions in regard thereto. The trial court resolved the issue in favor of the plaintiff. /There is ample evidence to support the judgment.

Accordingly, we find the judgment of the trial court is not against the manifest weight of the evidenceis sustained by sufficient evidence; and is not contrary to law.

Finding no prejudicial error in the record, the judgment of the trial court is affirmed. '

*Judgment affirmed.*

Wiseman, P. J., Hornbeck and Miller, JJ., concur.