COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67758 G. HERSCHMAN ARCHITECTS, INC. : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION RINGCO MANUFACTURING CO., INC. : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 11, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Shaker Heights Municipal : Court : Case No. 93 CVF 01072 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: PAUL L. MILLET DONA L. ARNOLD Attorneys at Law Four Commerce Park Square, #805 23200 Chagrin Boulevard Beachwood, Ohio 44122 For defendant-appellant: ALBERT E. FOWERBAUGH Attorney at Law 418 National City Bank Bldg. Cleveland, Ohio 44114 DONALD C. NUGENT, J.: This is an appeal from the decision of the Shaker Heights Municipal Court entered in favor of plaintiff-appellee, G. Herschman Architects, Inc. (hereinafter "appellee" or "Herschman"), on its complaint for money damages for services against defendant- appellant, Ringco Manufacturing Co., Inc. (hereinafter "appellant" or "Ringco"), and awarding appellee $8,325.00 in damages. Herschman initiated the present action on June 25, 1993, through the filing of its compliant alleging a cause of action for breach of contract. At dispute is the reasonable value of the architectural services which Herschman rendered on behalf of Ringco. Herschman claims it is entitled to $5,550 for the original services and $2,775 for additional services which were necessarily performed to fulfill the contract. Apparently, Ringco does not dispute that it owes appellee for the additional services, but contests the trial court's determination of the reasonable value of those services. The facts pertinent to the case herein are derived from the record of the trial court as well as the briefs of the parties. They are as follows: In 1992, the parties entered into discussions to reach an agreement through which the appellee would provide the appellant - 3 - with architectural services in the design of department store display stands. Pursuant to these discussions, in late June of 1992, the appellee "faxed" a proposal outlining the scope of the project and the architectural fees estimated to be involved with the project. The June 23, 1992 proposal estimated design services to encompass a maximum of twenty-four hours at a cost of $75 per hour. In addition, the proposal included construction drawing at a price of $750 and two meetings with shop manufacturers at a price of $600. The parties continued to negotiate the terms of the June 23rd proposal, and on June 29, 1992, the appellee sent a revised proposal separating the design and construction aspects of the project into two phases, although the essential price terms of the June 23rd proposal did not change. The parties did not formally sign the revised proposal of June 29, 1992; however, shortly thereafter, appellee began to perform the services as outlined in the proposal. The parties continued to work toward the design of the department store displays. As the project continued to evolve, the initial estimate of twenty-fours hours was quickly surpassed by appellee. As a result, the appellee expended thirty-seven hours of work in addition to the estimate of the June 29, 1992 proposal. On November 9, 1992, appellee sent a letter to appellant breaking down the amount of time spent on the - 4 - project and informing appellant of the reasons for the additional time that appellee had invested in the project. Thereafter, the parties failed to reach agreement in regard to the reasonable cost of appellee's services. On March 26, 1993, appellee forwarded a letter to Mr. Richard Davet, president and owner of appellant, in hopes of settling the parties' dispute over the cost of appellee's services. In this letter, Mr. Jerry Herschman, president of appellee, offered to "close the book" on the project if appellant were willing to forward $5,616.85 for appellee's services. Mr. Herschman stated that this amount "should make both of us equally unhappy with the situation." There is no indication in the record that there was ever a response from the appellant to this offer. The parties continued to be unable to reach agreement, and on June 25, 1993, appellee filed a complaint for money damages. Appellant answered, filing a general denial to appellee's complaint. Thereafter, appellee filed an amended complaint stating the total reasonable value of the services performed for appellant was $8,402.37. Trial was commenced in the Shaker Heights Municipal Court. The parties called the following witnesses to testify before the trial court: Gerald Herschman and David Ports, architects for appellee, and Richard Davet, president and owner of appellant. In addition to the testimony of these witnesses, various letters of - 5 - correspondence, notes, drawings and architectural sketches were 1 entered into evidence. On June 22, 1994, the trial judge issued her judgment for $8,325, with interest, in favor of plaintiff-appellee. In its judgment entry, the court found that the appellant requested some of the wording of the June 23, 1992 proposal to be changed. Once done, the trial court found that appellant "OK'd the requested verbiage on June 24, 1992, which resulted in a contract the terms of which were recorded in plaintiff's communication dated June 29, 1992." In so finding, the court stated that the appellant was "aware that the project had exceeded the parameters of the original agreement." In addition, the court found the reasonable value of the additional thirty-seven hours to be $75 per hour for a total of $2,775. Finally, the trial court found that the parties agreed for appellant to compensate appellee at the rate of $600 per store location to perform additional design work and construction drawings for four individual store locations which was so performed and for which appellant owed appellee an additional $2,400. The trial court found the initial work estimates of the June 29, 1992 contract to have been performed by the appellee. Specifically, the trial court ordered the appellant to pay $1,800 for appellee's design services, $750 for appellee's construction drawings and $600 1 No transcript of the proceedings was taken at trial, and none is present in the record before this court. Upon agreement of counsel, this action has been deemed an App.R. 9(A) record on appeal. - 6 - for appellee's meeting with manufacturing shops. Ringco timely filed its appeal of the trial court's judgment, raising the following assignments of error for our review: I. WHETHER THE TRIAL COURT PROPERLY FOUND THAT THERE WAS A WRITTEN CONTRACT IN THIS CASE. II. WHETHER THE APPELLEE PROPERLY ESTABLISHED THE REASONABLE VALUE OF THE SERVICES SO AS TO JUSTIFY THE TRIAL COURT'S DECISION. I. In appellant's first assignment of error, appellant argues that the trial court improperly found that the June 29, 1992 letter constituted a written contract between the parties. In support of this contention, appellant cites the testimony of appellee's president, Mr. Herschman, which indicates that he could point to no written contract between the parties. In its brief, appellant states that the heart of its contention is that "there was an agreement reached after the failure to come to written terms, that the Herschman firm would provide design services and the appellant would pay for services as provided." Further, the appellant contends that there "is a contract between the parties, but it does not agree that [the letter of June 29, 1992] is that document." Therefore, the nature of appellant's first assignment of error calls for a distinction between an express and implied contract. In its legal sense, the word "contract" includes every description - 7 - of agreement or obligation, whether verbal or written, whereby one party becomes bound to another to pay a sum of money or to perform or omit to do a certain act. Terex Corp. v. Grim Welding Co. (1989), 58 Ohio App.3d 80, paragraph one of the syllabus. To constitute a valid contract, there must be a meeting of the minds of the parties, and there must be an offer on the one side and an acceptance on the other. Noroski v. Fallet (1982), 2 Ohio St.3d 77, 79. Generally, an "offer" is defined as "the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it." Leaseway Distribution Centers, Inc. v. Ohio Dept. of Adm. Serv. (1988), 49 Ohio App.3d 99, 105, citing Restatement of the Law 2d, Contract (1981), 71, Section 24. Likewise, conduct sufficient to show agreement, including performance, is a reasonable mode of acceptance. American Bronze Corp. v. Streamway Products (1982), 8 Ohio App.3d 223, paragraph two of the syllabus. Accordingly, this court has said that "a contract may be shown 'in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.'" Id. at 227. Although the American Bronze decision interprets relevant portions of the U.C.C., said U.C.C. provisions did not alter general principles of contract law. See, Official Comment to R.C. 1302.07 (U.C.C. 2-204) Formation in General. In express contracts, the assent to the contract terms is actually expressed in offer and acceptance. In contracts implied - 8 - in fact, the meeting of the minds, manifested in express contracts by offer and acceptance, is shown by the surrounding circumstances which make it inferable that the contract exists as a matter of tacit understanding. Legros v. Tarr (1989), 44 Ohio St.3d 6, 7. Although it appears undisputed that the parties never formalized the terms of the June 29, 1992 letter by mutually signing the letter, this does not preclude the formation of a contract between the parties. Rather, as held in American Bronze, supra, the mode of acceptance in the present case was by the beginning of performance by the appellee. Simply because a party does not signify his acceptance by executing an agreement does not necessarily result in the unenforceability of the agreement. Berjian v. Telephone Co. (1978), 54 Ohio St.2d 147, 150. It is undisputed by the parties that the appellee did engage in the performance of work for the design and manufacture of the display stands. Upon the beginning of the work by the appellee, there was in effect an actual implied contract that appellant acquiesced to by its language and conduct. In the present case, appellant argues that it was error for the trial court to find that the parties entered into an express contract; however, the trial court did not make this finding. Rather, the trial court found that the parties entered into an agreement sometime between the June 23, 1992 proposal and the June 29, 1992 proposal. The terms of the final agreement were reflected in the June 29, 1992 proposal. The trial court merely used the - 9 - writings in the June 29, 1992 proposal to provide a basis to determine the reasonable value of the services for the parties' contract. Therefore, this court concludes that the trial court did not err in holding that the conduct of the parties, including the beginning of performance of services by appellee shortly after June 29, 1992, constituted evidence to determine that the parties entered into an agreement, the general terms of which were recorded in the appellee's letter dated June 29, 1992. Accordingly, appellant's first assignment of error is overruled. II. In appellant's second assignment of error, appellant argues that the trial court erred in establishing that the reasonable value of appellee's services should be $75 per hour. The judgment of the trial court was based greatly upon the credibility of the witnesses' testimony. As previously stated in footnote one of this opinion, there was no transcript taken before the trial court nor is there one before this court. Therefore, we will make every reasonable presumption in favor of the trial court's judgments. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight - 10 - of the evidence. C. E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. Furthermore, the weight to be given the evidence and witness credibility are primarily for the factfinder. Shore Shirley & Co. v. Kelly (1988), 40 Ohio App.3d 10. Appellant contends that "there was a total failure of proof in this case as to the [trial court's determination of the] reasonable value of the services rendered by the Herschman firm." In Atelier Design, Inc. v. Campbell (1990), 68 Ohio App.3d 724, the court held the following: If an architect renders services pursuant to an express contract, the amount of his compensation is to be determined by the terms of the contract. Owens v. Wilmington (1921), 15 Ohio App. 400. If there is no agreement, he is entitled to the reasonable value of his services. Of utmost importance to the determination of this issue is the reasonable value of the appellee's services for the thirty-seven additional hours that appellee worked on appellant's project. Appellant contends that the trial court simply relied upon the $75 per hour figure which was present in the June 29, 1992 letter. Moreover, appellant contends that the letter from appellee's president, Mr. Jerry Herschman, dated March 26, 1993 clearly quotes a price for all of appellee's services to be $5,616.85. Therefore, appellant argues that "something in the neighborhood of $5,600" is the appropriate amount for the appellee's services, rather than the $8,325 awarded by the trial court. In other words, it is appellant's contention that the trial court's judgment was - 11 - excessive in that it awarded appellee with nearly $3,000 more than it was entitled to receive for its services. As this court observed in Seasons Coal, supra, "the underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflection, and use these observations in weighing the credibility of the proffered testimony." In the present case, the trial court specifically stated in the judgment entry that it found Mr. Davet's testimony to be without credibility. It seems clear that the trial court greatly relied upon the figures contained in the June 29, 1992 letter in deciding that $75 per hour was a reasonable price for appellee's architectural services. However, this reliance alone does not make the trial court's determination unreasonable. In determining the reasonable value of the appellee's services, the trial court was free to consider the nature, reason and necessity for the additional hours which appellee worked. In addition, the trial court could look to any previously paid services as well as testimony regarding the typical value of such services. It appears that the reason for the thirty-seven additional hours was that the appellee simply made an improper assumption as to the length of time it would take for it to complete the project. It was the trial court's duty, weighing all the evidence and testimony, to determine the reasonable value of these services. - 12 - Furthermore, the appellant does not contend that the additional hours of work claimed by appellee were uncalled for or unnecessary. On the contrary, the trial court's judgment entry clearly states Mr. Davet testified that he was aware that the project had exceeded the parameters of the original agreement and told the appellee to "figure out the average and let him know." Rather, the discrepancy regarding these additional services arose not from the amount of time spent by appellee but from the value that this time was worth. As an attempt to settle the matter, appellee's president, Mr. Herschman, sent the letter dated March 26, 1993. Appellant's contention that this letter represents a more reasonable value for appellee's services is without merit. Rather, a plain reading of the entire letter clearly shows that the letter was merely an attempt at settlement on the part of appellee. The language, "This should make both of us equally unhappy," clearly implied that appellee felt that the $5,616.85 was a figure below what the appellee actually felt it deserved. The trial court was free to consider any and all of the exhibits and testimony brought before it in determining the reasonable value of the appellee's services. Therefore, based upon all of the evidence before this court, we find that the trial court's judgment establishing the value of appellee's services to be $75 per hour was supported by competent and credible evidence. - 13 - We cannot say that it was error for the trial court to accept the appellee's proposal for the value of its services rather than the proposal advanced by appellant. Accordingly, appellant's second assignment of error is overruled. Judgment affirmed. - 14 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Shaker Heights Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, P.J. ANN DYKE, J. CONCUR JUDGE DONALD C. NUGENT N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .