Aldrich v. Wilmarth

• Citation: 54 N.W. 811,3 S.D. 523
• Parties: ALDRICH et al. v. WILMARTH.
• Decision Date: 25 January 1893
• Court: South Dakota Supreme Court

54 N.W. 811

3 S.D. 523

ALDRICH et al. v. WILMARTH.

Supreme Court of South Dakota

January 25, 1893

Syllabus by the Court.

1. An agent has such authority as the principal actually or ostensibly confers upon him; and, when one holds another out to the world and accredits him as his agent, in determining the liability of the principal the question is not what authority was intended to be given to the agent, but what authority were third persons dealing with him justified from the acts of the principal in believing was given to him.

2. In an action by the contractors to recover on a building contract, evidence to prove work done in a manner or with material essentially different from that specified in their contract is inadmissible, as contractors are bound to construct the building substantially of the material and in the manner specified in the contract; but evidence that the work done in the manner specified in the contract was done in a workmanlike manner is admissible, especially when the defendant has pleaded that the work was not so done, and by reason thereof she has suffered damage.

3. When contractors have in good faith intended to and have substantially complied with the contract, although there may be slight defects caused by inadvertence or unintentional omissions, they may recover the contract price, less the damage sustained on account of such defects.

Appeal from circuit court, Beadle county; A. W. Campbell, Judge.

Action by George W. Aldrich and Jacob E. Huffman, partners as Aldrich & Huffman, against Alma E. Wilmarth, to recover a balance due on a building contract and for extra work. There was judgment for plaintiffs, and defendant appeals. Affirmed.

A. B Melville and A. W. Wilmarth, for appellant. Mouser & Vollrath, for respondents.

CORSON J.

This is an action to recover a balance claimed to be due on a building contract, and for the value of extra work and material furnished. Judgment for the plaintiffs, and the defendant appeals. The facts, briefly stated, are as follows The plaintiffs entered into a contract with the defendant to erect for her a brick building for the sum $10,700, of which the sum of $10,600 was paid before the institution of this action, leaving a balance, as claimed by the plaintiffs, of $100 still due them on the original contract. They also claimed the sum of $242.76 as due them for extra work and material furnished. The defendant denied that the $100 was due on the original contract; denied that more than $126.45 was due for extra work and material; and pleaded, as a counterclaim, that the plaintiffs had not finished said building, and had performed the work on the same in an unworkmanlike manner, and that by reason of the careless neglect and the cheap and unworkmanlike manner in which the building was constructed, the defendant sustained damage to the amount of $1,277.50, for which she demanded judgment. The case was tried by a referee, who found that the balance of $100 on the original contract was due the plaintiffs, and that they were entitled to the sum of $235.86 for extra work and material furnished. The referee also found that the defendant was entitled to the sum of $160.25 damages for the failure of the plaintiffs to fully perform their contract in accordance with its terms, leaving a balance due the plaintiffs, including interest, of $206.31, for which he recommended judgment should be entered for the plaintiffs. On the review of the referee's report, the court made a further allowance to the defendant of the sum of $66.95, and entered judgment for the plaintiffs for the sum of $139.44. A motion for a new trial was made in the court below, and denied.

There are numerous errors assigned, but they may be condensed into four, which embrace all that is material to be considered on this appeal, and these are (1) that the evidence was insufficient to justify the referee in finding that the foundation wall of the building was constructed according to the terms of the contract and specifications; (2) that the evidence as to the agency of A. W. Wilmarth, by whom most of the alleged extra work, as claimed by the plaintiffs, was ordered, was insufficient to justify the referee in finding that the extra work was performed at the instance and request of the defendant; (3) that the evidence was insufficient to justify the finding of the referee that the value of the extra work and material was $235.86; and (4) that the referee erred in permitting the plaintiffs to introduce evidence that the foundation wall was constructed in a good and workmanlike manner.

1. The contract provided "that three fourths of the stone in the entire foundation wall must be of large size, to reach through the wall." The appellant insists that this clause in the contract has not been complied with, and that the evidence was insufficient to justify the finding of the referee that the wall was constructed according to the terms of the contract. Upon this question several witnesses seem to have been examined, three of whom testified on behalf of the plaintiffs, and two or more on the part of the defendant. Mr Aldrich, one of the plaintiffs, testified that three fourths of the stone in quantity went through the entire wall. Mr Huffman, also one of the plaintiffs, testified that, as to the quantity, three fourths of the stone went through the entire wall; and Mr. Phillips, who had charge of the construction of the wall, testified that, in actual cubic measure, three fourths of the stone in the wall went through. There was evidence on the part of the defendant tending to prove that the wall was not constructed as specified in the contract. But the fact that the wall was so constructed was supported by the testimony of three witnesses on the part of the plaintiff, who seemed to have had knowledge of the facts, while the other view was supported by not to exceed three witnesses, who did not possess superior, if equal, knowledge of the character of the wall; hence this court would not be justified in disturbing the findings of the referee upon this question.

2. The next question presented is as to the authority of A. W Wilmarth to order the extra work, most of which, it is claimed by the plaintiffs, was ordered by him. It is contended by the learned counsel for the respondents that the referee was fully authorized to find from the pleadings that the extra work was performed and the material furnished at the instance and request of the defendant. We are inclined to agree with the counsel in this contention. It is alleged in the complaint that the additional labor was performed and material furnished at the special instance and request of the defendant, and that they were of the value of $242.76. The answer to this paragraph of the complaint is as follows: "And defendant admits that the plaintiffs performed certain labors and furnished certain material not provided for in the contract and specifications; but she avers that the plaintiffs, before the commencement of this suit, presented an itemized statement for all the extra labor and material so furnished, which items were as follows, and no other, or different, except as to the tile on lot 8, and as to the sidewalk." The bill of items given in the answer comprises some 28 items,...