Braseth v. The State Bank of Edinburg

• Decision Date: 07 January 1904
• Docket Number: 6731
• Citation: 98 N.W. 79,12 N.D. 486
• Court: North Dakota Supreme Court

98 N.W. 79

12 N.D. 486

O. A. BRASETH AND LINDORUS PRATT, COPARTNERS AS O. A. BRASETH & CO., v. THE STATE BANK OF EDINBURG, N.D., A CORPORATION

No. 6731

Supreme Court of North Dakota

January 7, 1904

Appeal from District Court, Walsh county; Kneeshaw, J.

Action by O. A. Braseth and Lindorus Pratt against the State Bank of Edinburg, N.D. Judgment for defendant, and plaintiffs appeal.

Affirmed.

B. G Skulason, for appellants.

H. A Libby, for respondent.

OPINION

MORGAN, J.

This is an action to foreclose a mechanic's lien filed by the plaintiffs against defendant's bank building in Edinburg, N.D. The plaintiffs erected the bank building under a contract embodying in it the plans and specifications. The amount claimed to be due on the contract price, $ 2,918, is the sum of $ 1,097.95. Extra work was done on the foundation and building in the sum of $ 221.69, which has also been paid for. The answer alleges that the contract was not performed in substantial compliance therewith, that it was deviated from intentionally, and that the building was erected in such an improper and defective manner and with such inferior materials that such defects cannot be remedied without material injury to the building in other ways. The defendant also pleads a counterclaim for damages on account of such defects in the building in the sum of $ 1,200. The trial court dismissed plaintiff's action, disallowed the counterclaim, and gave defendant its costs and disbursements. The appeal is from such judgment. Plaintiffs request a review of the entire case, under section 5630, Rev. Codes 1899.

Defects in the construction of the building are not denied by plaintiffs. There is no claim made by them that the contract was performed in all respects strictly according to its terms. They do claim, however, that the contract was substantially complied with, and that the deviations from the plans and specifications were unintentional, excusable, and capable of remedy, and that by allowing defendant damages for making some changes to make the building strictly conform to the plans the contract will be substantially performed, and defendant receive a building in every way as substantial as though the contract had been performed according to its letter. The defendant has pleaded many particulars in which the building does not conform to the specifications. In all, twelve variations are the subject of discussion in the arguments and are covered by the testimony. Some of these--in fact most of them--will not be more than mentioned, as one of them will be decisive of the case in its present form. The contract provided that the plaintiff should have the use of the brick that were on the lot, out of which the former bank building on the lot had been built. The former building was burned, and these brick had gone through the fire. The contract provision as to this is: "The contractor receives all salvage of the burned building and may work in as much of the old brick as will be consistent with the brick work specifications of the original building. All the outer brick walls must be taken down and rebuilt," etc. The specifications for the former building provided that: "Brick work shall start from bottom of first floor joists as shown per section and shall be laid of well-burned, sound brick, laid in lime mortar having trowel-struck joints. * * * The best brick to be selected for all face work." It is admitted that the side walls are not trowel-struck, and it is a matter of conflicting testimony as to the extent of the use of "brick bats" in the outer and inner layers of the side walls. The plaintiffs attempt to justify the failure to trowel-strike the brickwork of the side walls in view of the following facts: The fire which destroyed the former bank building also destroyed the buildings adjacent thereto on each side. When the contract was entered into in this case, it was not known to the parties that these adjacent buildings were to be rebuilt. Subsequent to letting this contract, and before the brickwork on the bank building had been begun, these adjacent buildings were put up. They were frame buildings, and were speedily erected. The space between this bank building and the adjacent buildings was small. The space was not accurately measured, but the evidence shows that "it was four or five inches." On the part of the plaintiffs it is claimed that it is impossible to trowel-strike brickwork in so small a space. The defendant claims that it is easily done. The excuse urged by plaintiffs is that it could not be done, and therefore was not done. There is very convincing testimony that the walls could have been finished according to the specifications in this regard, without extra care in any great degree. An expert witness for the plaintiffs testified as follows on cross-examination: "Don't you think it is possible and quite easily done, to trowel-strike these brick, layer by layer? A. Not in a place like that. Q. Couldn't it be done? A. Why, not hardly, I don't believe. I am going to try it the first chance I get. Q. And can't you reach down there and trowel-strike that without seeing it. A. Not very well. You have got to see it to know that you are hitting the joint. Q. I am not asking you as to how well you could do it. I am asking you if you could do it. A. Yes, sir. You could strike it." A witness for the defendant, testifying as an expert, said: "It could have been struck course by course, as they were laid up, very easily. Q. How close, or in how narrow a space, can you make a struck joint, with your trowel, by taking the work layer by layer? A. Anywhere from one inch to two." This witness was thoroughly cross-examined on this subject, and his testimony remained unshaken that trowel-struck work could have been done on the side walls without much difficulty. The testimony of this witness is corroborated by that of two others. The court found that this brickwork could have been trowel-struck "by exercising a great degree of patience and taking much more time." We will dismiss this phase of the case by saying that the evidence convinces us that this work could have been done according to the contract, and that the failure to do so was intentional and inexcusable.

The evidence is undisputed that the appearance of the building is injured by the failure to finish these walls properly, and is conflicting as to whether it affects the durability of the wall or its use so far as keeping out wind, rain, or snow and in resisting fire is concerned. It is claimed that, so far as appearances are concerned, it is immaterial, as the adjacent buildings conceal the defects from casual observation. In considering whether the walls are affected so far as durability and usefulness or protection from the elements is concerned, the evidence as to the character of the brick used therein and the manner of laying them must be considered with the evidence as to failure to trowel-strike the work. The witnesses all agree that brick bats were used to some extent in the outer walls, and that the walls had holes in them. Some say many and some say few. Owing to the adjacent buildings preventing, the examination was impossible except from the tops of the adjacent buildings, and then it could only be made at most about two feet below the roofs of the adjacent buildings. But it is amply proven by a convincing preponderance of the evidence that the holes in the wall were quite numerous so far as the examination extended. We see no reason for holding that an examination of the whole walls would show an absence of holes in the unexamined part. The failure to properly finish was intentional, and done for a purpose, and the purpose undoubtedly existed and was carried out as to the whole wall. It needs no evidence to convince any one that a wall with numerous holes in it is not substantially built, or that it is inadequate for the purposes for which built. One of the plaintiffs (Mr. Braseth) testifies that there were some holes in the walls, but a few only of much depth. He also testifies that some brick bats were used in the outer walls. Not one witness claims that there were no holes in the side walls. There is no conflict on this point. The conflict in the evidence relates to the question as to the number, and whether their presence is detrimental or affects the durability or the usefulness of the wall as protection. The evidence shows that the side walls, so far as they could be examined, contained many holes extending well into the wall. These were caused by the falling out of the mortar, caused by the improper setting of the brick in the mortar, and the failure to trowel-strike the mortar between the brick. Trowel-striking is described as drawing the trowel over the mortar after the brick is placed therein, resulting in cutting it off and smoothing and spreading it, so that the holes are closed up. The use of brick bats of all sizes in the side walls was general. ...