Dittmer v. Nokleberg

• Decision Date: 04 June 1974
• Docket Number: No. 8918,8918
• Citation: Dittmer v. Nokleberg, 219 N.W.2d 201 (N.D. 1974)
• Parties: Reynold DITTMER and Lenora Dittmer, Plaintiffs, Appellees and Cross-Appellants, v. Jorgen KOKLEBERG, Defendant, Appellant and Cross-Appellee. Civ.
• Court: North Dakota Supreme Court

Page 201

219 N.W.2d 201

Reynold DITTMER and Lenora Dittmer, Plaintiffs, Appellees and Cross-Appellants, v. Jorgen KOKLEBERG, Defendant, Appellant and Cross-Appellee.

Civ. No. 8918.

Supreme Court of North Dakota.

June 4, 1974.

Rehearing Denied June 27, 1974.

Syllabus by the Court

1. Where defects resulting in a breach of building contract may be remedied without taking down and reconstructing a substantial portion of the building, the amount of damages which the owner may recover is the expense of making the work conform to the contract, but where such defects cannot be so remedied, the measure of damages is the difference between the value of the defective structure and what the value of the structure would have been if properly completed according to the contract.

2. Where defects or omissions or deviations from the contract pervade the work on the whole building, the contractor cannot recover on the theory of substantial performance.

3. The builder is not responsible for defects arising from doing the work in the manner directed by the owner, or which are caused by acts of the owner during the progress of the work.

4. To entitle a contractor to recover upon a building contract which has not been fully complied with by him under the doctrine of substantial performance, it must appear not only that he endeavored to perform it in good faith but also that he has done so, except as to unimportant omissions or deviations which are the result of mistake or inadvertence and were not intentional, and which were susceptiable of remedy, and that the other party will get substantially the building he contracted for.

5. Under the doctrine of substantial performance it is essential that the contractor's default should not have been willful, and the defects must not be so serious as to deprive the property of its value for its intended use, or to so pervade the whole work that the deduction of damages will not be fair compensation.

6. Findings of fact made by a court trying a case without a jury are binding unless clearly erroneous. A finding is clearly erroneous when made without evidentiary support.

7. Substantial compliance with a building contract does not absolve the builder from responding in damages for his omissions and derelictions.

Conmy, Feste, DeMars & Bossart, Fargo, for the plaintiff, appellees and cross-appellants.

Wegner, Fraase & Cook, Fargo, for the defendant, appellant, and cross-appellee.

TEIGEN, Judge.

Both the plaintiffs and the defendant have appealed from a judgment of the trial court.

In their complaint the plaintiffs (Dittmers) seek to recover damages in the amount of $24,560 from the defendant (Nokleberg) because of Nokleberg's breach of contract in the construction of a home on the Dittmers' farm. It is the contention of the Dittmers that Nokleberg failed to substantially perform the contract, and that the measure of damages is the difference between the value of the house as finished by Nokleberg and what the value of the house would have been if it had been finished according to the contract.

Nokleberg has counterclaimed for a recovery of the amount due on the contract, by foreclosure of his mechanic's lien, and for alleged extras, for a total of $6,252.

The case was tried to the court, and the court determined that the Dittmers were responsible for some of the defects but that Nokleberg was also responsible for a number of defects, and that Nokleberg had not substantially performed his contract. It allowed the Dittmers judgment against Nokleberg in the amount of $4,077.38, and denied Nokleberg's counterclaim.

It appears that the Dittmers and Nokleberg entered into a verbal contract in March 1970, whereby Nokleberg was employed by the Dittmers to furnish labor for the construction of a dwelling on their farm at an agreed consideration of $8,900. Of this sum $7,300 was allocated for labor in building the house and $1,600 for labor in constructing the basement and garage. Under the arrangement the Dittmers were to buy all materials, and Nokleberg was to do the carpenter and cement work. The Dittmers reserved to themselves the letting of contracts to other persons for excavation of the basement, electrical wiring, plumbing, brick work, plastering, and the installation of heating. The Dittmers planned to do the painting themselves.

The house was nearly completed when the parties terminated their relationship because of differences that had arisen during the construction period. The unfinished work at the time of the termination of the contract was valued at $470. Thus it appears that Nokleberg's work was approximately 95% Complete at the time of the termination of the contract on or about April 7, 1971.

During the process of the work the Dittmers paid Nokleberg the sum of $4,000. Nokleberg filed a mechanic's lien for the balance of his claim, based on the contract. In addition, he claims that he performed extras in the amount of $1,525. He seeks recovery for the amount due, less the value of the unfinished work.

The claims for damages by the Dittmers are numerous. They claim that there were defects in the construction of a good portion of the exterior walls of the dwelling which resulted in the masonite siding being wavy. This was caused by the use of crooked 2 4s and studs in the construction of the walls. They also claim that the hip roofs and roof valleys were irregular; that the soffits were negligently constructed, causing leakage of water from the roof into the interior of the building; that the front entry concrete slab pulled away from the house; that, through carelessness, cement had splattered on a portion of the exterior walls of the building and was permitted to harden; that there were numerous defects in the interior of the house, consisting of improper installation of windows; improper installation of sheetrock around the windows, leaving openings, and that some windows were 'offsquare'; that miter cuts on inside trim did not fit; that the walls were out of plumb in some of the rooms; that the interior doorways and trim were uneven; that the sliding doors did not fit nor work; that cracks developed in the ceiling; that support posts in the basement were not properly installed; that the woodwork in the bathroom was mismatched as to grain; that the kitchen cabinets were improperly constructed and installed; and that the cement in the basement floor was developing holes and cavities.

Nokleberg contends that, pursuant to the oral contract, the Dittmers were responsible for furnishing the materials; that during the construction period the Dittmers assumed the role of general contractor, interfered with the regular process of work by changing the plans of the house several times during the construction period, interfered with the work by doing some of the work themselves, and delayed construction; that during the delay period, there were several heavy rains before the house was closed in; and that instructions were given to change the roof of the house from a gable to a hip roof. It appears that a number of differences arose between the parties during the construction period, finally resulting in the termination of the relationship.

The evidence is contradictory in a number of respects, although both parties agree that the Dittmers were responsible for purchasing the materials. The Dittmers contend that Nokleberg had the responsibility of approving the materials and chose the lumber company from which the materials were to be purchased. The Dittmers testified that their agreement with the lumber company was that the lumber was to be 80% Of construction quality and 20% Of standard grade, whereas the lumber furnished was only 50% Of construction quality. It appears that this caused a delay in the work of about three weeks. During this time the dwelling was only partially constructed and had not been closed in against the weather, and that during this period it rained. Nokleberg contends that he attempted to cull out the defective materials, and that he was not responsible for the quality of the materials.

The trial court, having heard the testimony and observed the witnesses as they testified, determined that Nokleberg must be held responsible for the lack of good workmanship and that the Dittmers must be held responsible for the defects in materials. It also determined that the defects or omissions which were not remediable without tearing down that portion of the building which had incorporated in it the wavy walls and other defects caused by poor materials were the fault of the Dittmers, and that the remaining defects were remediable or repairable. Although the trial court found that the defects in workmanship were substantial, that reference in its findings was limited to the interior of the house. The record establishes that subsequent to the termination of the contract between the parties the Dittmers engaged other workmen to repair or remedy these defects, as well as to complete some of the work which remained unfinished.

In its memorandum decision the trial court found that the necessary repairs had been made at a cost to the Dittmers of $3,557.38, plus repairs yet to be made on the basement floor estimated at $50, and allowed damages for uncompleted work in the amount of $470, for a total of $4,077.38 as damages allowable to the Dittmers against Nokleberg. It denied Nokleberg's claim for the balance of the contract and for the claimed extras on the basis that there had not been substantial performance.

In its findings of fact the trial court found that the Dittmers had agreed to and did purchase the materials, including the studs; that much of the material purchased was defective and that, from all surrounding circumstances, the Dittmers assumed the responsibility for the purchase and quality of the materials and Nokleberg made the best of the situation in the performance of the labor; that if any fault lay in the construction, stemming from and...