Anderson v. Todd

• Decision Date: 22 November 1898
• Parties: ANDERSON et al. v. TODD.
• Court: North Dakota Supreme Court

8 N.D. 158

77 N.W. 599

ANDERSON et al.

v.TODD.

Supreme Court of North Dakota.

Nov. 22, 1898.

Syllabus by the Court.

1. To entitle a contractor to recover upon a building contract, which has not been fully complied with by him, under the doctrine of substantial performance, it must appear, not only that he endeavored to perform it in good faith, but also that he has done so, except as to unimportant omissions or deviations, which are the result of mistake or inadvertence, and were not intentional, and which are susceptible of remedy, so that the other party will get substantially the building he contracted for.

2. Facts examined, and held not to bring the plaintiffs within the rule.

3. Held, further, that the mere fact of taking possession of the building does not of itself amount to an acceptance of the same by the owner as having been erected according to contract.

Appeal from district court, Walsh county; D. E. Morgan, Judge.

Action by Cameron Anderson and K. C. Hunter, co-partners as Anderson & Hunter, against R. R. Todd. Judgment for plaintiffs. Defendant appeals. Reversed.John H. Fraine and Bosard & Bosard, for appellant. Bangs & Guthrie, for respondents.

YOUNG, J.

Action to recover a balance claimed to be due upon a building contract and for extras, and to enforce a mechanic's lien therefor. The defense is noncompliance with, and nonperformance of, the contract. The trial court determined that the contract had been substantially complied with, and after making certain deductions, to which allusion will be subsequently made, found for the plaintiffs. Defendant appeals, and specifies some 47 errors. These it will not be necessary or useful to consider in detail, for reasons which will appear as we proceed. The defendant, being desirous of erecting a two-story brick building upon a certain corner lot owned by him in the city of Grafton,-the first story to be used for a store, and the second for offices,-caused plans and specifications therefor to be prepared by Orff & Joralemon, architects in Minneapolis. On July 17, 1894, the plaintiffs, who are contractors and builders, entered into a written contract with defendant to erect such building in accordance with the plans and specifications so prepared, except as to the foundation, which was modified by the following language inserted in the contract: “Instead of foundation being built by piers, as shown by plans, said foundation is to be a solid foundation under all the exterior walls of said building, to go down six (6) feet below the surface, and to be built at the bottom three (3) feet wide and one (1) foot thick, of concrete, the same as set forth in the plans; and the balance of the wall to be of brick, three (3) feet wide at the bottom, and gradually tapering to the top of said foundation wall, which is to be sixteen (16) inches wide.” Plaintiffs also stipulated in said contract “to lay all foundation brick in cement, and foundation wall to be plastered inside and outside with cement, of the same kind set out in plans and specifications”; that is, Yankton cement. Defendant, on his part, bound himself therein to pay the sum of $6,000, as follows: 75 per cent. of the cost of all the material upon the ground, to be estimated every 14 days; the balance “to be paid when the building is completed and turned over, and accepted by the said first party, and when the said second party turns over to the first party receipts in full showing payment of all material used in said building, and payment to all subcontractors in full of the amount due them for material furnished or labor done.” The findings of the trial court enumerate certain specific particulars in which the plaintiffs deviated from their written contract, and to which we now call attention: First. Milwaukee or Louisville, and not Yankton, cement was used; the evidence showing that from 180 to 210 barrels were necessary, and that the relative cost thereof per barrel at Grafton was as follows: Milwaukee, $1.44; Louisville, $1.79; Yankton, $3.40. Second. The foundation wall did not taper up 6 feet from a 3-feet width at the bottom to 16 inches at the top, but was blocked into a 16-inch wall 2 feet from the bottom, at a saving of 6,000 brick to the contractors. Third. The plate glass was not free from sand holes. Fourth. The front of the building was not properly constructed. Fifth. The plaintiffs did not turn over receipts showing payments to subcontractors, and for material, as required by the contract. Sixth. The rear and party walls were not built of selected brick, as to color. The trial court held, however, that the plaintiffs had not willfully deviated from the contract, but had acted in good faith, and, upon the basis that there had been a substantial performance on their part, allowed the plaintiffs to recover the contract price, also $188.49 for extras furnished, less payments made, but reduced the balance so found to be due by an allowance for defects and damages as set out in the following finding: “That the total deduction to be made from the contract price of said building by reason of noncompliance with the contract is the sum of $416.46, as follows: Defects in plate glass, $25; defective construction of front, $50; foundation not built as to contract, as per finding No. 13, $275; painting of front, $25; removing rubbish, insurance plate glass in side door, $16.46; pointing up holes in wall, $25.”

An examination of the evidence satisfies us that the findings of the trial court relating to the deviations from the contract as above indicated are not only sufficiently supported, but are favorable to the plaintiffs; for they rest, not upon disputed and conflicting evidence, but upon the testimony of plaintiffs' own witnesses. Although the findings are silent upon that point, the undisputed evidencealso shows that no foundation wall at all was built under the front portion of the building. The defendant's answer placed in issue the...