by the Bank in an effort to please the school board and secure prompt acceptance and settlement of the prime contract. Therefore, the only figure which may be resorted to as the amount reasonably necessary for the Bank's completion of the Feuz subcontract is the estimate of $ 7,000 made at the time of the preliminary negotiations by Mr. Klein, estimator and office manager for Walter B. Avery, who remained on the job for the Bank after Mr. Avery's death. This estimate was testified to by the garnishor's witnesses and was not denied by the garnishee's witness or in the affidavits filed by the garnishee.
Under this view of the evidence, even though the court should not determine that $ 7,000 was an agreed maximum, it would be warranted in using the $ 7,000 figure as the reasonable cost of completing the obligations of Feuz under its subcontract, in which event the money judgment reached would be the same as that in the proposed findings, conclusions, and judgment.
As to the statements that the Feuz Company asked the Bank to complete the work under its subcontract because it was not in a position to do so, there is no assertion that the Bank took over the work under Article XXII of the subcontract or complied with the terms of that provision, under which completion of the subcontract by the contractor would have been at the subcontractor's risk. The garnishee admits that a voluntary agreement was reached by the parties; and the preponderance of the evidence is that the Bank representatives wished to complete the unfinished landscaping and that the subcontractor reluctantly agreed thereto.
As to the statements that the Feuz Company never objected or called attention to the fact that any grades were so steep that seeding would produce an unsatisfactory result, the garnishee does not now offer contradiction by the one person named to whose attention it was testified the Feuz Company called the matter.
The statements in the affidavits that the work was completed by the Bank in accordance with the plans and specifications under the contract and not in excess thereof, are contradicted by the testimony of the Bank's witness Hoffman that certain extras were incurred after the Bank took over the work.
The statement of the affiant Baker that he never saw any representative of the Feuz Company on the job after April 12, 1950, is of little weight, in view of the fact that he was superintendent of the construction on five different sites and considering the testimony of Mr. Chicarell, a disinterested witness, that he walked the jobs with Mr. Herbert Feuz, Mr. Edward Feuz, and Mr. Sachs, their attorney, on April 26 and 27, 1950, when he made his report on the condition of the seeded areas. Further, the Feuz Company admitted that after it complained, without any effect, as to the manner in which the Bank contemplated completion of the landscaping and the fact that employees on the payroll charged against the Feuz account were doing other work for the contractor, it made no further attempt to oversee the landscaping or to check the payroll.
Ground 6 of the garnishee's motion alleges that the final judgment proposed 'would perpetuate dishonesty and untruthfulness and would place a premium of some $ 4,918.50 upon the same,' and that the circumstances presented by the case entitle the garnishee to relief similar to that under the provisions of Rule 60(b), clauses (1) and (3). Under these provisions the court may relieve a party from a final judgment for mistake, inadvertence, surprise, or excusable neglect, or for fraud, misrepresentation, or other misconduct of an adverse party.
As to mistake, inadvertence, surprise or excusable neglect, none has been shown by the garnishee, and it is difficult to conceive how counsel can contend there has been any, since the theory of the garnishor's case was made clear on the first day of the trial. As to fraud, misrepresentation, or other misconduct of an adverse party, the garnishee's memorandum in opposition to the court's proposed findings characterizes the testimony on which they were based as 'loose talk.' While the witnesses in question may have testified with some inaccuracy as to details, the majority of witnesses do. In the court's judgment, the garnishor's witnesses were on the whole credible. Mere contradiction of their understanding of the oral agreement or recollection of the facts should not subject these witnesses to charges of dishonesty, fraud, and misconduct.
For the foregoing reasons, the court holds that there is not such a substantial showing as to warrant the court in reopening the trial for further testimony on behalf of the garnishee.
The garnishee's motion to reopen is therefore denied, and the court has signed the findings of fact, conclusions of law, and judgment.
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