Bachertz v. Hayes-Lucas Lumber Co.
| Decision Date | 05 November 1937 |
| Docket Number | 31312. |
| Citation | 275 N.W. 694,201 Minn. 171 |
| Parties | BACHERTZ v. HAYES-LUCAS LUMBER CO. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Blue Earth County; Harry A. Johnson Judge.
Action by Carl W. Bachertz against the Hayes-Lucas Lumber Company. From an order denying defendant's blended motion for judgment notwithstanding or new trial, the defendant appeals.
Order reversed, with directions to grant defendant's motion for judgment notwithstanding the verdict.
Syllabus by the Court .
1. The statute of limitations is one of repose. Its general purpose is to prescribe a period within which a right may be enforced, afterwards withholding a remedy for reasons of private justice and public policy.
2. (a) The statute commences to run against a cause of action from the time it accrues-in other words, from the time an action thereon can be commenced.
(b) When a right depends upon some condition or contingency, the cause of action accrues and the statute runs upon the fulfillment of the condition or the happening of the contingency.
(c) A cause of action for breach of contract accrues immediately on a breach, though actual damages resulting therefrom do not occur until afterwards.
3. Courts do not volunteer the enforcement of statutes of limitation, but they do not refuse to enforce them when they are invoked by parties. They will not aid or encourage parties in their attempts, by mere strategy in judicial proceedings, or by circuitous route of action, to avoid them. They are to be applied alike to all.
Gallagher & Madden, of Waseca, and Schmitt Johnson & Farrish, of Mankato, for appellant.
C. J. Laurisch, and Josiah A. Baker, both of Mankato, for respondent.
Plaintiff prevailed in his action to recover damages for alleged breach of warranty. Defendant's blended motion for judgment notwithstanding or new trial was denied. The appeal is from that order.
Plaintiff is, and over a period of years has been, a resident of Mankato and there engaged in the business of erecting dwellings and other structures. Defendant's business is that of a retail dealer in building materials.
During the spring and early summer of 1924 plaintiff was erecting a two-story dwelling house upon premises owned by him in Mankato. While this was in course of construction defendant's agent, one Murphy, interviewed plaintiff with the object in view of getting him interested in certain material known as ‘ Rocbond’ to be used as a plaster or stucco on the outside walls of the building. In his complaint he avers: ‘ That in order to induce plaintiff to purchase and use such material in said building defendant stated and represented to plaintiff that when installed according to specifications prescribed by the maker thereof such material would be satisfactory, permanent and would last forever without requiring repairs'; that one Schultz ‘ had installed said ‘ Rocbond’ material in a number of jobs and was familiar with the specifications and requirements of its maker, and that if plaintiff would employ' Schultz to apply the material ‘ it would be properly applied and that defendant would then guarantee to plaintiff that said material would be permanent and would not require repairs.’ He further alleges that, relying upon these statements and representations so made, he entered into a contract with Schultz, who procured from defendant the material mentioned and ‘ applied the same to the outer walls of said building in accordance with specifications therefor furnished’ ; that after the material had been applied plaintiff informed Schultz that ‘ it was not satisfactory’ and that plaintiff would not pay for same; that thereafter, about July 10 defendant's agent and Schultz called upon plaintiff and inspected the work as well as the material; that both of them told plaintiff that the work appeared satisfactory and that the material appeared to be in good condition; that the material was still damp and too fresh to show defects; that it was necessary for such material to harden thoroughly and to stand for some time before defects would show up. Further, the defendant ‘ stated to plaintiff that if plaintiff would pay * * * for said work and material * * * defendant would guarantee to plaintiff that said material would give absolute satisfaction * * * would not crack or loosen, and that if any defect should show up in said material at any time thereafter that defendant would replace such material on said building without cost to plaintiff.’ Relying upon that guaranty, so plaintiff claims, he paid Schultz for the entire job, and Schultz in turn paid defendant for the material purchased by him for the job. In September, 1933, plaintiff, seeking a homeowner's loan, was visited by appraisers for that organization. Then ‘ for the first time’ plaintiff observed that the material had become loosened and cracked and that other defects had arisen, ‘ so that said material must be entirely removed and replaced with new stucco in order to put said building in good condition.’ But reason of the foregoing alleged warranties and breaches thereof plaintiff claims to have been injured in the sum of $1,500 for which judgment is demanded, with costs.
The answer, in addition to tendering the general issue, pleaded laches and the statute of limitations and other defenses not deemed important here in view of what we shall hereafter state. Plaintiff's reply denied ‘ every allegation of new matter.’
The evidence discloses plaintiff to be a man of wide experience in the building game. The premises involved were occupied by him ever since the job was finished in June, 1924. Plaintiff then objected to the job, claiming there were many objectionable defects, the stucco ‘ was cracking around that base of the building, there was a flare in the base * * * it was checking in the base.’ He refused to pay for the job unless a ‘ written guarantee’ was furnished. On May 29 defendant wrote the manufacturer of Rocbond about and matter and received assurance from it that The letter from which quotation is made bears date May 31, 1924. Defendant thereafter wrote Mr. Schultz as follows:
‘ Hayes-Lucas Lumber Company
‘ Retail Lumber and Coal
‘ D. P. Murphy, Manager.
‘ Mankato, Minn., July 10, 1924.
‘ Mr. Ernest O. Schultz,
‘ Mankato, Minn.
‘ Dear Sir:
‘ We wish to assure you that the Rocbond material as furnished for Mr. Bachertz’ house at 228 Willard Street is guaranteed to give absolute satisfaction when applied according to their specifications, and in case Rocbond is found to be defective in any way The Rocbond Co. have agreed to replace free of any charge to the owner.
‘ Yours very truly,
‘ [Signed] Hayes-Lucas Lumber Co.
‘ M.’
Immediately below and on the same sheet appears the separate guaranty or promise on the part of Mr. Schultz, which reads as follows:
‘ Mankato, Minnesota, November 8, 1924.
‘ I, the undersigned, Ernest F. Schultz, do hereby certify that I am the contractor who did the work in applying the Roc Bond stucco to the apartment of C. W. Bachertz at 228 Willard Street, Mankato, Minnesota; and I further certify that he has applied the material on above property the same as all materials that are furnished by the Roc Bond Company.
‘ [Signed] Ernest F. Schultz.’
This instrument was admitted in evidence as Plaintiff's Exhibit A.
It is important to remark that the form as originally prepared was charged by Schultz by drawing a line through the words hereinbefore so showing, and immediately following was inserted in pen and ink what follows the stricken portion.
Apparently nothing more happened until the summer of 1929, when a collector for defendant called upon plaintiff to pay to small bill ($31.20) for material purchased by him from defendant in January of that year. Plaintiff then informed the collector that he was not...
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