Baranowski v. Strating
| Decision Date | 02 December 1976 |
| Docket Number | Docket No. 25525 |
| Citation | 250 N.W.2d 744,72 Mich.App. 548 |
| Parties | Walter E. BARANOWSKI and Sophia M. Baranowski, Plaintiffs-Appellees, v. Roland L. STRATING and Wayne Brower, d/b/a Strating and Brower Builders, Defendants-Appellants. 72 Mich.App. 548, 250 N.W.2d 744 |
| Court | Court of Appeal of Michigan — District of US |
[72 MICHAPP 550] Bergstrom, Slykhouse & Shaw by Robert G. Quinn, Jr., Grand Rapids, for defendants-appellants.
White, Smitter, Zimmerman & Walters by Henry R. Smitter, Grand Rapids, for plaintiffs-appellees.
Before R. B. BURNS, P.J., and D. E. HOLBROOK and T. M. BURNS, JJ.
Plaintiffs' house was damaged due to settlement of the foundation. In this action plaintiffs sought to recover from the defendant builders, alleging breach of contract and negligence in the construction of the residence. Trial was held before Kent County Circuit Court Judge Roman J. Snow. In an opinion dated July 18, 1975, the trial court found the defendants guilty of negligence and awarded damages of $20,600. Defendants appeal from that judgment.
To set out the facts relevant to the issues raised on appeal we quote at length from Judge Snow's written opinion:
'On March 29, 1974, Plaintiffs Walter E. Baranowski and Sophia M. Baranowski, his wife, filed a complaint against Roland L. Strating and Wayne Brower, d/b/a Strating and Brower Builders, seeking in one count damages for breach of a building agreement for construction of a house by defendants for plaintiffs, claiming that defendants failed to conduct soil boring tests as required by the agreement; and in a second count the plaintiffs ask for damages based upon negligence of defendants in failing to conduct such tests prior to building their home; that as a result of the failure to conduct such tests the house settled and plaintiffs incurred[72 MICHAPP 551] damages. Defendants denied any liability to the plaintiffs in connection with the construction of the house and raised as an affirmative defense that the contract was entered into between plaintiffs and Strating and Brower Builders as a corporation and not these defendants as individuals.
'The proofs showed that on July 20, 1970, plaintiffs entered into an agreement with Melvin Jelsema to purchase a lot fronting Freska Lake for $9600. The agreement provided that the design of the house constructed on said lot had to be approved by Melvin Jelsema. Melvin Jelsema had platted this area in 1963, and had constructed 8 houses in the plat. The lot Jelsema sold to plaintiffs had been filled. Jelsema knew it had been filled prior to selling the lot to plaintiffs, but never disclosed to plaintiffs that the lot had been filled. Plaintiffs made no attempt to join Melvin Jelsema as a party-defendant.
'Plaintiffs had plans for the house prepared by Andrew Cnossen, an Architect, and then submitted the plans to Melvin Jelsema for his approval. Following this, plaintiffs submitted the plans to three different builders for bids. Strating and Brower Builders were low bidders. Plaintiff Walter Baranowski called Roland Strating and made an appointment with him to go over the plans. Plaintiffs met Roland Strating at 7768 22nd Street, Jenison, Michigan, where Roland Strating lived and also had his office. No representations were made by Roland Strating that Roland Strating and Wayne Brower were incorporated.
'On May 19, 1971, an agreement was entered into to construct a house for the plaintiffs for $29,010. The agreement read in part as follows:
[72 MICHAPP 552] 'The agreement was signed as follows:
'and at the bottom:
"Builder Strating & Brower Builders
7768 22nd Ave, Jenison, Michigan.'
'Page II entitled 'SITE WORK', provided in part as follows:
'The Specifications Agreement was signed:
and thereunder:
"By Strating & Brower Bldg. Builder by Roland Strating'
'Roland Strating and Wayne Brower formed a partnership in 1964 for the purpose of building homes. The partnership was dissolved in 1969. On March 26, 1969, Roland Strating and Wayne Brower incorporated as [72 MICHAPP 553] Strating & Brower Builders, Inc. They were in fact incorporated at the time the building agreement with plaintiffs was signed on May 19, 1971. Roland Strating and Wayne Brower were the sole stockholders. Roland Strating was President and Wayne Brower, Secretary. The corporation was subsequently dissolved on March 10, 1972. The building agreement form used by defendants was their old partnership building agreement form which did not contain the word 'Inc.'. Plaintiffs had never dealt with nor knew of defendants prior to entering into this agreement.
from the edge of Freska Lake. Plaintiffs moved in October 15, 1971. Before plaintiffs moved in, there was cracking in the basement floors which defendants patched at the request of plaintiffs. Thereafter, the cracks reappeared in the same area and also in the foundation walls, brick work and plaster. The doors and windows in the house began to settle.
'Plaintiffs hired a soil expert to bore test holes at the four corners of plaintiffs' house. The test borings showed that the house was constructed on unsuitable bearing soil; that there was sand at the upper levels, and peat and muck at the lower levels.
'According to the testimony of Edward Prein, the Consulting Engineer, the house could have been piled when built at a cost of $15,000. The cost of supporting the house after it was built would be $50,000.
'In October of 1974 plaintiffs employed John Leach, an underground and foundation contractor, to build supports under the foundation. The contractor supported the southwest corner of the house through piling and underpinning at a cost of $5,508.20. This only partially corrected the problem.
'The township supervisor first examined the property in 1972 and placed a value thereon of $49,773 and with $8,900 thereof being placed on the lot. Following an appeal by the plaintiffs, the property was revalued at $43,000; and thereafter, at $40,600. In 1974, following an examination of the damage to the house caused by the settling, the house was reappraised at $20,000. There was no other testimony relating to value. This [72 MICHAPP 554] would put the loss of plaintiffs at approximately $20,600, the difference in value of the house before and after the settling.
'Plaintiffs further claim that defendants promise in their agreement that 'all excavation to be sufficient to place footings on suitable bearing soil' constituted an unconditional promise. Plaintiffs admit that defendants did not agree to take soil borings; that they could choose any techniques they wanted to verify suitable bearing soil; but that the appearance tests relied on by defendants were not reliable as soil borings, as soil borings are the only way to be sure of soil conditions. Plaintiffs claimed that defendants were negligent in not taking soil borings.
The trial court found that the defendants did not breach the building contract but were liable for negligence. The trial court found that the plaintiffs were entitled to damages measured by the difference in value of the house before and after the settling.
Plaintiffs alleged that the defendants were negligent in not conducting soil boring tests before beginning construction. The trial court found that a reasonably careful contractor had a duty to be reasonably certain that the land upon which he intended to build a house contained suitable load bearing soil. The trial court based its finding of negligence on the following findings of fact:
[72 MICHAPP 555] 1. Defendant Strating was an experienced builder while the plaintiffs knew little about building in general and soil conditions in particular.
2. While there was testimony that soil boring tests were not normally made in that area prior to constructing a house (nor were they required by the township), the reason why such tests were normally not made was because the quality of the soil in the area was known from personal experience. The nature of the land upon which plaintiffs' house was built was not known to the defendants.
3. Testimony (including that of defendant Brower) indicated that it was common knowledge that land fronting on inland lakes often contains muck, marl and peat. Brower testified that he had assumed that Strating...
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