Cary Manufacturing Company v. Ferch
| Citation | 275 N.W. 255,67 N.D. 603 |
| Decision Date | 25 September 1937 |
| Docket Number | 6476 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Where the record on an appeal from a judgment rendered pursuant to the verdict of a jury contains no specifications of error of law or of the insufficiency of the evidence nothing is presented for review.
2. The question as to the correctness of the ruling of a trial court upon a motion for a directed verdict is a question of law and upon appeal from a judgment will not be reviewed unless such ruling is specified as error.
3. Newly discovered evidence which merely tends to contradict and impeach witnesses who testified at the trial does not furnish a ground for a new trial unless the evidence is of such probative effect as to render a different result probable upon a retrial.
4. The fact that newly discovered evidence is cumulative in nature does not necessarily preclude the trial court from granting a new trial, but a refusal to do so will not, as a general rule, be deemed an abuse of discretion.
Appeal from Cass County Court; P. M. Paulsen, Judge.
Suit by the Cary Manufacturing Company against C. J. Ferch. From a judgment for defendant, and from an order denying the plaintiff a new trial on ground of newly discovered evidence the plaintiff appeals.
Affirmed.
Burdick & Burdick, for appellant.
The builder is not responsible for defects arising from doing the work in a manner directed by the owner or which are caused by acts of the owner during progress of the work. Murphy v. Kassie, 59 N.D. 35, 228 N.W. 449; 9 C.J. 754; Schultz v. Truax, 53 N.D. 213, 205 N.W. 236.
Where building contract required contractor to remedy any defects in his work after the building has been accepted, the owner may not proceed to remedy defects himself at the contractor's expense and in his absence, without giving him any notice. 9 C.J. 814; Valentine v. Gilborne, 27 S.D. 309, 130 N.W. 1018.
Failure of owner who is present to notify contractor of his failure to comply waives defects. Danville Bridge Co. v. Pomroy, 15 Pa. 151; Paule Jail Bldg. & Mfg. Co. v. Hemphill Co. 62 F. 698; 9 C.J. 801.
A waiver with full knowledge of the quality of the materials used and of the character of the work done precludes him from enforcing a claim against the builder for damages for inferior work and materials. Sirch Elec. & T. Laboratories v. Harbutt, 13 Cal.App. 435, 110 P. 140; Houlette v. Arntz, 148 Iowa 407, 126 N.W. 796.
Acceptance in the absence of fraud or mistake waives any claim for damages. Mannix v. Wilson, 18 Cal.App. 595, 123 P. 981.
Failure to object when work could easily have been remedied -- owner cannot claim damages. Gilette v. Young, 45 Colo. 562, 101 P. 766.
Where the owner selects the building material, he cannot hold builder responsible for quality. Beck Coal & Lumber Co. v. H. A. Peterson Mfg. Co. 237 Ill. 250, 86 N.E. 715; Donaldson v. Cowey, 8 Rob. (La.) 162.
Contractor may recover if installation was made, over his objection, by order of owner, if its failure to perform the guarantee was caused by same. Friedenrich v. Condect, 124 A.D. 807, 109 N.Y.S. 525; Smith v. Russell, 144 A.D. 847, 129 N.Y.S. 461; 9 C.J. 797.
Possession or use, however, is evidence of acceptance and waiver, and when taken in connection with some other circumstances, such as some act or language on the part of the owner, may be sufficient to show an acceptance or acquiescence. 9 C.J. 797; Wildey v. Paro Paw Fract. School Dist. 25 Mich. 419.
When an owner refuses to pay on specified grounds, and litigation results therefrom, he thereby waives all other grounds known to him at the time, and is estopped from thereafter relying thereon. 9 C.J. 801.
The measure of damages occasioned by failure strictly to perform a building contract is, in case of substantial performance, the difference between the value of the work done or the building erected, and the value of what was contracted for. Kasto Constr. Co. v. Minto School Dist., 48 N.D. 423, 184 N.W. 1029; 9 C.J. 110; Dornblatt v. Carlton, 10 Ga.App. 741, 73 S.E. 1085; McCullough v. J. Hayde Contracting Co, 82 Kan. 734, 109 P. 176.
Damages must be definite and susceptible to computation and cannot be speculative or remote. Wedwik v. Russell-Miller Milling Co., 64 N.D. 690, 256 N.W. 107; Youman v. Hanna, 35 N.D. 479, 160 N.W. 705; Ridlanger & Hanson Co. v. Parker, 62 N.D. 483, 243 N.W. 792; 9 C.J. 810; 17 C.J. 798.
Where the application for a new trial is made "upon the minutes of the court" and notice of intention, which specifies the particulars in which the evidence is alleged to be insufficient and the particular errors relied upon, is incorporated into the bill of exceptions, the sufficiency of the evidence and alleged errors may be reviewed by this court. Lennan v. Pollock State Bank, 21 S.D. 511, 110 N.W. 834; Mt. Terry Min. Co. v. White, 10 S.D. 620, 74 N.W. 1000; Shuman v. Lesmeister, 34 N.D. 209, 158 N.W. 271; Feil v. N.W. German Farmers' Mut Ins. Co. 28 N.D. 355, 149 N.W. 358.
Burnett, Bergesen & Haakenstad, for respondent.
Appellant cannot have a trial de novo in the supreme court in a law case tried to a jury. Barnum v. Gorham Land Co. 13 N.D. 359, 100 N.W. 1079; Hanson v. Carlblom, 13 N.D. 361, 100 N.W. 1084; Couch v. State, 14 N.D. 361, 103 N.W. 942; State Bank v. Maier, 34 N.D. 259, 158 N.W. 346; Lloyd Mortg. Co. v. Davis, 51 N.D. 336, 199 N.W. 869.
It is incumbent upon one who desires to challenge the correctness of a judgment by an appeal to the supreme court to "serve with the notice of appeal a concise statement of the errors of law he complains of, and if he claims the evidence is insufficient to support the verdict, he shall so specify." Masset v. Schaffner, 31 N.D. 579, 154 N.W. 653; Anderson v. Osborne-McMillan Elevator Co. 51 N.D. 730, 200 N.W. 905.
An assignment of errors in appellate procedure is in the nature of a pleading, and it performs in the appellate court the same office as a declaration or complaint in a court of original jurisdiction. 3 C.J. 1328; 4 C.J. 1716.
Where no specifications of error are attached to and served with the notice of appeal from a judgment, the appellate court will consider such errors only as appear upon the face of the judgment roll proper. State v. Lane, 60 N.D. 706, 236 N.W. 353.
Requests for instructions do not constitute part of the judgment roll, and hence cannot be reviewed on appeal unless incorporated in the statement of the case. Guild v. More, 32 N.D. 432, 155 N.W. 44.
It is necessary for the plaintiff to offer affirmative proof of the performance of all conditions precedent in order to recover on his contract. Davis v. Jeffris, 5 S.D. 352, 58 N.W. 815.
The question of substantial compliance is one for the jury. Hulst v. Benevolent Hall Asso. 9 S.D. 144, 68 N.W. 200; 9 C.J. 801.
Where by reason of defendant's wrongful act, plaintiff has lost the tenants of his property and is unable to rent the same, he may recover for his loss of rents. 17 C.J. 798.
The loss of rents may be considered damages where the contractor is at fault. Hagen v. Knudson, 43 N.D. 72, 173 N.W. 794; Jones v. Holland Furnace Co. 188 Wis. 394, 206 N.W. 57.
On breach of warranty of a furnace, the measure of damages is the difference between the value of the furnace as it had been warranted and its actual value as it in fact turned out to be. Mair v. Williams, 29 S.D. 322, 136 N.W. 1086.
The granting of an application for a new trial on newly discovered evidence rests in the sound discretion of the trial court. Pengilly v. J.I. Case Threshing Mach. Co. 11 N.D. 249, 91 N.W. 63; Mikkelson v. Snider, 43 N.D. 416, 175 N.W. 220; Keck v. Kavanaugh, 45 N.D. 81, 177 N.W. 99; Security State Bank v. Kramer, 51 N.D. 20, 198 N.W. 679.
A new trial for newly discovered evidence will be granted only where manifest injustice and wrong appear and there is no other relief obtainable. 46 C.J. 244.
Great caution should be exercised in the granting of a new trial on the ground of newly discovered evidence. Ewing v. Stickney, 107 Minn. 217, 119 N.W. 802; Moore v. Philadelphia Bank, 5 Serg. & R. (Pa.) 41; State v. McLaughlin, 27 Mo. 111.
Where matters occurring subsequent to the trial are newly discovered evidence, but new evidence available at the trial is no ground for a new trial. 40 C.J. 232; Hensely v. McHan (Ga.) 70 S.E. 654; Johnson v. Waterloo, 140 Iowa 670, 119 N.W. 70.
As a rule, the newly discovered evidence must be relevant to the issues already framed. 46 C.J. 261; Stodgel v. Elder, 172 Iowa 739, 154 N.W. 877; Brewster v. Miller, 31 S.D. 613, 141 N.W. 778; Brown v. Sheets (N.C.) 63 A.L.R. 1357.
Newly discovered evidence which is not material to the issues but is merely impeaching is not sufficient ground for granting a new trial. Libby v. Barry, 15 N.D. 286, 107 N.W. 972; Howlett v. Stockyards Nat. Bank, 48 N.D. 933, 188 N.W. 172; Lunschen v. Ullom, 25 S.D. 454, 127 N.W. 463; Dickman v. Thomas, 36 S.D. 283, 154 N.W. 811; Dacotah Packing Co. v. Bertelson, 52 S.D. 324, 217 N.W. 393.
To warrant the granting of a new trial on the ground of newly discovered evidence, the affidavits must show such new facts as will probably lead to a different result on another trial. Braithwaite v. Aikin, 2 N.D. 57, 49 N.W. 419; Heyrock v. McKenzie, 8 N.D. 601, 80 N.W. 762; Farmers State Bank v. Jeske, 50 N.D. 813, 197 N.W. 854; Standard Oil Co. v. Kennedy, 54 N.D. 31, 208 N.W. 555; McGilvary v. First Nat. Bank, 56 N.D. 174, 217 N.W. 159; Fetzer v. Aberdeen Clinic, 48 S.D. 308, 204 N.W. 364; Island v. Helmer (S.D.) 258 N.W. 815.
New trial will not be granted if there is legal evidence to sustain the verdict. Weiss v. Evans, 13 S.D. 185, 82 N.W. 388; Conradt...
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