Alm Const. Co. v. Vertin

• Citation: 118 N.W.2d 737
• Decision Date: 10 December 1962
• Docket Number: No. 7997,7997
• Parties: ALM CONSTRUCTION COMPANY, a Minnesota Corporation, Plaintiff-Respondent, v. Marjorie VERTIN, Defendant-Appellant, and B. P. McCusker and Citizens First National Bank of Wahpeton, North Dakota, Defendants. ALM CONSTRUCTION COMPANY, a Minnesota Corporation, Plaintiff-Appellant, v. Marjorie VERTIN, B. P. McCusker and Citizens First National Bank of Wahpeton, North Dakota, Defendants-Respondents.
• Court: United States State Supreme Court of North Dakota

Page 737

118 N.W.2d 737

ALM CONSTRUCTION COMPANY, a Minnesota Corporation, Plaintiff-Respondent, v. Marjorie VERTIN, Defendant-Appellant, and B. P. McCusker and Citizens First National Bank of Wahpeton, North Dakota, Defendants.

ALM CONSTRUCTION COMPANY, a Minnesota Corporation, Plaintiff-Appellant, v. Marjorie VERTIN, B. P. McCusker and Citizens First National

Bank of Wahpeton, North Dakota, Defendants-Respondents.

No. 7997.

Supreme Court of North Dakota.

Dec. 10, 1962.

Rehearing Denied Jan. 10, 1963.

Syllabus by the Court.

1. A contract must be construed to give effect to the intention of the parties as it existed at the time of contracting. Section 9-07-03, N.D.C.C.

2. Where the contract is written, the intention of the parties must, if possible, be ascertained from the writing alone. Section 9-07-04, N.D.C.C.

3. Where a contract is ambiguous and it is impossible to acertain the intention of the parties from the writing alone, it is proper to search for its true meaning by reference to the circumstances under which it was made and the matter to which it relates.

4. A contract must be interpreted so as to give effect to the mutual intention of the parties as it existed at the time of contracting so far as the same is ascertainable, lawful and capable of being carried into effect.

5. Evidence as to the meaning of an ambiguous contract is admissible and where a written construction contract incorporates specifications by reference and two different sets of specifications are offered in evidence, it is for the jury to determine which one is the set of specifications referred to.

6. Where a written construction contract incorporates the specifications by reference and two sets of specifications are offered in evidence, one by each party, and the court accepts the specifications in evidence offered by the plaintiff, it was prejudicial error to refuse to receive the specifications in evidence which were offered by the defendant where sufficient foundation was laid.

7. Where the defendant counterclaimed for breach of a building contract alleging faulty workmanship and materials in contractor's action for balance due, it was error to exclude evidence of the cost of making the work conform to the contract offered by the defendant on the ground that it was not a proper measure of damages as the jury by the nature of the case could find that the defects may be remedied.

8. Where owner counterclaims for faulty workmanship and material in contractor's suit for payment and parties admit contract but disagree as to the specifications, and each party submits a different set of specifications, owner was not competent, without further qualification, to testify as to fair market value of building and parking lot described in contractor's proffered specifications in support of damages on the difference of value theory of damages.

9. Where value of newly constructed building and adjacent parking lot is at issue, evidence of cost of construction is admissible as it goes to weight of testimony of value.

10. Where plaintiff sues on building contract for balance and obtains money judgment against owner and judgment provides bank, also a party defendant, shall pay to the plaintiff the amount of its judgment from funds in bank's possession belonging to owner, deposited in said bank on a special or conditional deposit for the purpose of paying said contract when certain specified conditions were met, and owner appeals from whole judgment to Supreme Court and bank does not appeal, owner's appeal is suspensive of that part of judgment ordering bank to pay judgment from the deposit.

11. Where defendant appeals to Supreme Court from adverse judgment and district court orders a special or conditional bank deposit, a part of the subject matter of the litigation, to be deposited with the clerk of the district court as a supersedeas bond, it has changed the character of the deposit. A reversal of the judgment and granting of a new trial will result in the release of the supersedeas depriving the plaintiff of a valuable right. On plaintiff's appeal from such order, we reverse the district court's order and direct it to order the clerk of court to return the deposit to the bank and the bank to re-establish the status quo of the deposit.

Wattam, Vogel, Vogel, Bright & Peterson, Fargo, for plaintiff, respondent and appellant.

Johnson, Milloy & Eckert, Wahpeton, for defendant, appellant and respondents.

TEIGEN, Judge.

The plaintiff, a contractor, alleges it constructed a store building and adjacent parking lot for the defendant Miss Vertin and that the said defendant owes a balance of $15,000 on the contract and $2,500 for extra work. The plaintiff seeks to recover judgment the amount of $17,500. It also alleges the defendant Miss Vertin deposited with the defendants McCusker and Citizens First National Bank of Wahpeton the sum of $15,000 in escrow, payable to the plaintiff in reduction of the judgment which it is entitled to. It seeks to collect the deposit and to foreclose a mechanic's lien which it filed against the improved premise for the balance.

The defendant Miss Vertin admits contract, admits unpaid contract balance of $15,000, and denies the plaintiff's claim for extra work. She alleges noncompliance with contract provisions, faulty workmanship and materials, prays for a dismissal of the plaintiff's complaint, and counterclaims for $25,000 in damages because of breach of contract. The defendants McCusker and Citizens First National Bank of Wahpeton deny generally the allegations of the complaint.

The case was tried to a jury and a verdict was returned in favor of the plaintiff against the defendant Miss Vertin in the amount of $14,000. Judgment was entered in favor of the plaintiff in the amount of the verdict, plus interest, costs and disbursements. It also decreed the judgment a lien upon the premises and ordered the defendants McCusker and Citizens First National Bank of Wahpeton to turn over to the plaintiff from the funds on deposit an amount equal to the judgment. It dismissed the defendant Marjorie Vertin's counterclaim.

The defendant Marjorie Vertin moved in the alternative for judgment notwithstanding the verdict or new trial which was denied. She takes this appeal from the judgment and the orders denying judgment non obstante and new trial. The defendants B. P. McCusker and Citizens First National Bank of Wahpeton have not appealed.

Included in the record is a second appeal. It is an appeal from two orders of the district court made after judgment by the plaintiff in this case. The first order denies plaintiff's application to have judgment enforced against the defendants B. P. McCusker and Citizens First National Bank of Wahpeton, which application was premised on the theory that the judgment has become final against them because they have not appealed or noticed any motions after the return of the verdict. The other order appealed from allowed the defendant Vertin to file as a part of her supersedeas bond the money deposited with the defendants B. P. McCusker and Citizens First National Bank of Wahpeton.

We will first consider the appeal of the defendant Marjorie Vertin.

The plaintiff is a family corporation engaged as a building contractor with offices at Minneapolis, Minnesota. The defendant Marjorie Vertin is the owner of certain lots located at Wahpeton, North Dakota, upon which she desired to have constructed a building with adjacent parking lot to lease to National Tea Company as a supermarket. Miss Vertin owned another building in the City of Wahpeton which had been leased by National Tea Company for a number of years; however, National Tea had expressed a desire to have a new and more modern building.

During the time involved in this lawsuit, National Tea Company changed its name to National Food Stores, Inc., and, for the sake of convenience, the corporation will hereafter be referred to as National.

A contract was executed between plaintiff and the defendant Miss Vertin for the construction of a building 50 feet by 130 feet with adjacent parking lot for the agreed amount of $50,000. The contract was written on a printed form entitled 'THE A. I. A. SHORT FORM FOR SMALL CONSTRUCTION CONTRACTS.' It is a form issued by the American Institute of Architects for use when the proposed work is simple in character, small in cost and the stipulated sum forms the basis of the payment. The contract provides that the contractor shall furnish all of the material and perform all of the work for general construction of a building and parking lot as shown on drawings and described in the specifications entitled 'National Food Store, Wahpeton, North Dakota, prepared by National Tea Company Engineering Dept.' The section on General Conditions of this contract provides that it should include 'the Agreement and its General Conditions, the Drawings, and the Specifications' and provides that two or more copies of each shall be signed by both parties, one signed copy to be retained by each. It also provides that the documents shall be considered as one. No drawings or specifications were signed by either party nor attached to the contract. Each party now claims to submit the intended specifications but the two sets of specifications vary.

The plaintiff contends it was agreed that the building and parking lot were to be constructed like the one built by the plaintiff and occupied by National at Sleepy Eye, Minnesota, in 1958. It claims there were no written specifications; however, near the completion of the construction, plaintiff and a representative of National drew a set of specifications which plaintiff now submits as the specifications intended by the parties under the contract. The defendant denies any such agreement or intention and contends the specifications she offers in evidence, modified to provide a 50 foot building and 60 foot parking lot, were agreed upon as the specifications intended in the...