Cartwright & Wilson Const. Co. v. Smith
| Decision Date | 07 March 1952 |
| Docket Number | No. 33056,33056 |
| Citation | 52 N.W.2d 274,155 Neb. 431 |
| Parties | CARTWRIGHT & WILSON CONST. CO. v. SMITH. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The length of time devoted to meals while the jury are deliberating upon a verdict cannot be shown for the purpose of proving that they did not deliberate for the prescribed length of time provided by law.
2. Where by statute, as in this state, plaintiff is authorized to plead general performance of all conditions precedent in a contract, defendant must, if he relies upon the fact that any of the conditions precedent have not been performed, set out specifically the condition and the breach.
3. The instructions to the jury in this case, when considered and construed together, fairly state the law applicable to the issues raised by the pleadings and proofs.
George B. Dent, Jr., North Platte, for appellant.
Baskins & Baskins, North Platte, E. LeRoy Shields, Salt Lake City, Utah, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
The plaintiffs, Leon Cartwright and William E. Wilson, a co-partnership engaged in the construction of outdoor drive-in theaters, brought this action at law in the district court for Lincoln County against W. L. Smith, defendant, to recover the balance due it as commission on a written cost-plus contract. The cause was tried to a jury resulting in a verdict in favor of the plaintiff in the amount of $2,485.71, and a finding against the defendant on his cross-petition. Motion for judgment notwithstanding the verdict and in the alternative for a new trial was filed by the defendant. This motion was argued and overruled. Judgment was entered on the verdict. The defendant appeals.
For convenience we will refer to Cartwright and Wilson Construction Company, a co-partnership, as plaintiff and the partners thereof by their names as occasion requires. The outdoor drive-in theater will be referred to as the theater, and W. L. Smith as the defendant.
There is no dispute that a written contract was entered into by and between the plaintiff and defendant on August 18, 1948, by the terms of which the plaintiff agreed to construct the theater for the defendant. The defendant agreed to pay the costs of the labor and material used in the construction. By the terms of the agreement defendant agreed to pay the plaintiff ten percent of the cost of labor and material used in the construction.
The plaintiff's petition alleged that the theater was completed on or about September 10, 1948; that the plaintiff complied with all the terms of the contract; that the total cost of the labor and material used in the construction of the theater was $52,244.85; and that the defendant paid the plaintiff $2,500 and was given credit for $238.77 which should be deducted from the plaintiff's commission which totaled $5,224.48. The plaintiff prayed for $2,485.71, with interest and costs.
The defendant's amended answer specifically denied all of the allegations of the plaintiff's petition not admitted. It was alleged that plaintiff held itself out to defendant as being expert in the construction of outdoor drive-in theaters and, relying on its representation and promises, oral and written, the defendant entered into the contract referred to in plaintiff's petition; that notwithstanding such representations and warranties on the part of the plaintiff, the plaintiff wholly failed to construct the theater in a workmanlike manner; that it furnished incompetent help and supervision; that by the failure to construct the theater in a workmanlike manner and carry out the terms of the contract the defendant was damaged; that defendant did not discover that the work was done in an unworkmanlike manner until after he had paid certain sums of money to the plaintiff; and that by virtue of the unworkmanlike manner in which plaintiff constructed the theater, the defendant was put to large expense, and, in order to make temporary repairs to the ground where the theater is located and keep it in operation he was obligated to expend $1,954.75. The items constituting this amount appear in the amended answer and will not be set forth here as they appear in the evidence. The defendant further alleged that the screen was constructed in an unworkmanlike manner and had to be remodeled and reinforced at a cost of $1,000; that the ticket office was located at a place which made it inaccessible and it was necessary to move it at a cost of $192; and that defendant, in order to properly have the ground drain to permit operation of the theater, would be obligated to expend $4,650. These items are also set forth in the amended answer. In addition, the defendant expended $268 for labor at plaintiff's request.
In his cross-petition the defendant incorporated the substance of the foregoing allegations of his amended answer, reiterated the same subject matter therein, and prayed for $8,064.75 and costs.
The plaintiff's reply to the amended answer was a general denial, and plaintiff's answer to the defendant's amended cross-petition was a general denial.
In addition to what has been heretofore set out in reference to the contract it provided, in substance, that plaintiff was to construct the theater upon property designated by the defendant. The theater was to accommodate approximately 500 automobiles. The construction was to be performed upon specifications furnished by the defendant, which would include construction of an appropriate screen tower, a projection room, confectionary, and ticket office, construction of roads and ramps, all roads and ramps to be graded and packed, plaintiff to do all painting and electrical work, to install adequate water and sewerage system consisting of a septic tank and cesspool, and plumbing facilities required by defendant. Plaintiff was to furnish a competent civil engineer to supervise the laying out of the roads, the grading, and other installations. The engineer was to be paid $150 a week. Services of the engineer were to be computed in the cost of the construction for the purpose of determining the ten percent commission. Defendant was to pay all bills for material and labor necessary in the construction of the theater. The cost of installation of sound and projection equipment and field speakers was to be included in determining the ten percent commission.
It appears from the record that Leon Cartwright and William E. Wilson were a co-partnership engaged in the business of constructing outdoor drive-in theaters since 1946. Loen Cartwright testified that he became acquainted with the defendant, W. L. Smith, who was desirous to having an outdoor drive-in theater constructed in North Platte. Prior to the time he became acquainted with the defendant his firm had constructed 10 or 12 such theaters. The defendant came to Greeley, Colorado, where his firm was constructing a theater. He and the defendant talked about the construction of a theater. As a result a contract was entered into. Leon Cartwright looked over the site which defendant had purchased. The other member of the firm, William E. Wilson, went to North Platte on August 19, 1948, to supervise the construction of the theater, and took some workmen with him, two of whom were Mr. Haynes and an elder Mr. Cartwright. The construction of the theater was practically finished and completed about September 10, 1948, and it was in operation by September 18, 1948. Wilson next saw the defendant in the early part of 1949. On this occasion he and the defendant went over the bills evidencing the cost of the construction of the theater and certain payments made by the defendant. The items used in the construction and the total cost thereof were detailed by Wilson, the amount of the plaintiff's commission determined, and the payments made by the defendant.
At this point the plaintiff rested its case. The defendant moved for a directed verdict which was overruled, and will be discussed later in the opinion under one of the defendant's assignments of error.
The defendant then adduced evidence of a civil engineer familiar with the theater, who made a survey of the premises on November 17, 1950, in which he mapped the layout, the position of the screen, the ramps and the roads, and took levels to ascertain the slope of the land in order to perfect the drainage to keep the theater in operation during the spring season. He detailed in what manner this work should be done, and concluded it would take 3,400 cubic yards of clay to fill the ramps and 1,000 cubic yards of gravel would be necessary to finish off the slope. He was unacquainted with the top soil or the condition of the land prior to the time he made this survey and estimate. The cost of the material and expense involved were testified to by the defendant.
A general contractor, familiar with the theater and the premises, was called out on the ground in June 1949. By an exhibit he identified the screen, testified to its condition, and that he placed it back in the condition in which it was before it was blown over by the wind. In January 1950, he was called again to put the screen in a workable and stationary condition. He explained how he reinforced it to make it substantial for the purpose for which it is used. He testified to the material used, the cost thereof, and gave an estimate of the cost of the labor necessary for the job. He further testified taht the screen was not properly constructed. He had not engaged in the construction of theater screens. It appears that this screen was blown down by the wind on two occasions, and the defendant was reimbursed by an insurance carrier to place the screen back in condition.
The defendant testified that he had operated the theater since it was completed, a period of 59 days in the fall season of 1948. He got the idea of constructing such a theater in the summer of 1948. He looked around at different theaters, looked for...
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