Cornish, Curtis & Greene Company v. Antrim Co-Operative Dairy Association
| Decision Date | 08 January 1901 |
| Docket Number | 12,345 - (106) |
| Citation | 84 N.W. 724,82 Minn. 215 |
| Parties | CORNISH, CURTIS & GREENE COMPANY v. ANTRIM CO-OPERATIVE DAIRY ASSOCIATION and Others |
| Court | Minnesota Supreme Court |
Action in the district court for Watonwan county to foreclose a mechanic's lien for $3,000. The case was tried partly before the court, and part of the evidence was taken before a referee. The court, Severance, J., found in favor of defendants. From an order denying a motion for a new trial plaintiff appealed. Affirmed.
Building Contract.
Where a contract for the construction of a creamery provided that during its erection "the board of managers shall confer" with its builder, and the manager and directors were present during its construction, the fact that they did not confer with the builder, or object to defects and omissions, does not relieve the latter from a substantial compliance with the plans and specifications under which it had agreed to construct the building.
Omissions and Defects -- Estoppel.
When omissions and defects were equally known to the builder, as well as to the manager and directors, who agreed to confer during its erection, the failure to confer does not estop defendant from taking advantage of such omissions and defects upon completion of the structure, when it is tendered for acceptance.
Review of Evidence Taken before Referee.
Evidence taken before a referee appointed during the trial, with the consent of the parties, when considered and made the basis of findings of fact, must be reviewed by this court, in the same manner, and to the same effect, as if such testimony was actually received in open court by the trial judge.
Findings Sustained by Evidence.
Evidence considered, and held fairly to support the findings of fact and to sustain the conclusion of law thereon that there was not a substantial compliance with the contract to construct the creamery, and that defendant for that reason was not bound to accept and pay for the same on its completion.
Stringer & Seymour and Cannon & Donnelly, for appellant.
W. S. Hammond and J. W. Seager, for respondents.
Plaintiff seeks to foreclose a lien upon a lot and building constructed for defendant under a written contract, by the terms of which it was to be accepted when completed and equipped with proper machinery for operation as a creamery, according to the plans and specifications attached. The building was erected upon land held by a stockholder in trust for the creamery association, and it is sought by the plaintiff to impose the lien upon such land, as well as the building and machinery therein, for the full amount of the contract price. The building was completed and machinery placed therein by plaintiff, and tendered to the defendant association, which declined to accept it, upon the claim that the same had not been constructed in accordance with the written agreement between the parties, which was the issue upon the trial in the court below, who made specific findings of fact to the effect that the plans and specifications had never been carried out, and that "said building was not a reasonably sound, good and substantial building, and the said contract was not substantially performed by the plaintiff as to said building." Judgment was ordered for defendants, and plaintiff, after a motion for a new trial had been denied, appealed to this court.
The evidence in the case was heard partially by the court below while a large portion of such evidence was taken before a referee agreed upon by the parties, and reported to the court. This evidence was considered by the court in reaching its conclusions upon the issues involved. It is urged by plaintiff that where important evidence of controlling character, as in this case, is taken before a referee, the findings of the trial court responsive thereto are not entitled to the same weight as if based upon evidence originally heard at the trial, where the court had an opportunity to see and observe the witnesses as well as their manner of giving testimony, and that, in the consideration of its findings based upon such evidence reported by the referee, this court should examine the same from the standpoint of the trial judge, and determine the weight of such evidence as an original proposition. We cannot accede to this view. This court has appellate jurisdiction only in such cases, and it is our clear duty to treat the findings of fact by the trial...
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