
    289 P.2d 202
    Richard K. HATCH, Plaintiff and Respondent, v. L. Gordon BYWATER and Helen Bywater, Defendants and Appellants.
    No. 8328.
    Supreme Court of Utah.
    Oct. 28, 1955.
    
      Dwight L. King, Salt Lake City, for appellants.
    Peter M. Lowe, Salt Lake City, for respondent.
   HENRIOD, Justice.

Appeal from a judgment for plaintiff on a claim arising out a cost plus house construction contract. Affirmed, with costs to plaintiff.

A lump sum contract dated May 7 was signed on the same day that a cost plus contract dated May 9 was signed. The latter contained a provision that it modified the former! Defendants urge that the cost plus contract was to govern only in the event the construction costs ultimately proved to be less than the amount set in the lump sum contract.

Suffice it to say that, aside from the unlikelihood that a builder would agree to such a novel arrangement, the record quite convincingly compels us to conclude that the trial court’s fifiding that the only contract intended and binding was the cost plus contract, is correct, as is evidenced, among other things, by such acts on the part of defendants inconsistent with a lump sum contract, as paying construction costs long after the lump sum had been reached and exceeded, and by recognizing and allowing deductions to be made for the percentage supervision fees which were mentioned in the cost plus but not in the lump sum contract.

To burden this decision with further facts pointing up the correctness of application by the trial court of the law to the circumstances of this case, would seem to serve no useful purpose.

McDonough, c. j., and crockett and WADE, JJ., concur.

WORTHEN, J., not participating.  