Thomson v. Wheeler Construction Company

DIMOND, Justice.

The defendant (appellee) built a home for plaintiffs (appellants) under a cost-plus contract. Plaintiffs brought this ac tion for damages in excess of $29,000 based on a theory of fraud. Defendant counterclaimed for $14,284.99 — the difference between the total cost as billed by defendant ($42,633.84) and the amount that plaintiffs had paid on account ($28,348.85).

The trial judge determined that the allegation of fraud was not supported by the evidence, but found that there was a partial failure of performance on defendant’s part and adjusted the amount of the counterclaim…