Dobler v. Malloy

• Decision Date: 11 December 1973
• Docket Number: No. 8894,8894
• Citation: 214 N.W.2d 510
• Parties: Emil DOBLER, doing business as Queen City Lumber, Plaintiff and Appellant, v. Harry L. MALLOY and Lorraine Malloy, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 510

214 N.W.2d 510

Emil DOBLER, doing business as Queen City Lumber, Plaintiff and Appellant, v. Harry L. MALLOY and Lorraine Malloy, Defendants and Appellees.

Civ. No. 8894.

Supreme Court of North Dakota.

Dec. 11, 1973.

Syllabus by the Court

1. Upon remand of a case, the trial court must comply with the terms of the remand, but may allow amendments and new pleadings where conformable to law and consistent with the terms of the remand.

2. Where the remand authorized the trial court to determine the damages due to inferior construction of a home, it was authorized to permit amendments raising claims of defects discovered after the first trial.

3. Findings of fact made by a court trying a case without a jury are binding unless clearly erroneous.

4. A view of the premises by a court, trying a case without a jury, is equivalent in legal effect to a view by a jury.

5. A view by court or jury aids in understanding and applying the evidence.

6. Whether a view by court or jury is itself evidence is not decided.

7. A view by a court, without a jury, is an additional reason for holding that its findings of fact are binding unless clearly erroneous.

8. Anticipatory breach of contract by discharging the contractor is not an 'acceptance' of the job by the owner.

9. Approval of labor and materials by a foreman hired with the approval of the owner by the contractor is not such an acceptance of the design and performance of the job as to preclude the owner from recovering for defects in the work.

10. A foreman employed by a contractor with the approval of the owner is not an agent of the owner.

11. A contractual agreement to use 'materials of top quality, equipment, skills and labor necessary to do a proficient workmanlike job according to the highest standards of labor' in a certain area is an express warranty.

12. Where a contractor holds himself out, expressly or by implication, as competent to undertake a contract to build a building, and the owner has no particular expertise in the kind of work contemplated, and furnishes no plans, designs specifications, details, or blueprints, and tacitly or specifically indicates his reliance on the experience and skill of the contractor, after making known to him the specific purposes for which the building is intended, there is an implied warranty of fitness for the purpose for which the building is intended.

13. An agreement to construct a building to an agreed elevation is an express warranty.

14. While a builder is not responsible for defects arising from work done in a manner directed by the owner over his objection, he is liable for breach of his own warranty if following instructions from an uninformed owner, without objection, results in breach of the warranty.

15. Where a house was built at an elevation lower than contracted for, the owner may recover for both past damage by flooding which would not have occurred if the contract had been performed, and either loss of market value or the cost of raising the building to conform to the contract.

16. Where the damages under two possible rules of damages are the same, recovery may be affirmed under either.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for plaintiff and appellant.

Freed, Dynes & Malloy, Dickinson, for defendants and appellees.

VOGEL, Judge.

This dispute between a housebuilder, Dobler, and the owner of the house, Malloy, is before us for the second time. See Dobler v. Malloy, 190 N.W.2d 46 (N.D.1971).

On the former appeal by Dobler, he succeeded in obtaining a new trial and a determination that Malloy had anticipatorily breached the contract between them. At the new trial, the court allowed the pleadings to be amended, retired the issues of damages, and, to Dobler's apparent dismay, awarded more damages to Malloy than were awarded at the first trial.

Having won a victory here which, after the retrial in the district court, turned out to be Pyrrhic, Dobler is back in this court demanding a third trial. We must disappoint him.

We held in the earlier opinion that the owner breached the contract anticipatorily, and that the evidence was insufficient to determine the amount of the damages. The opinion concluded with these words:

'The judgment of the district court is therefore reversed and the case is remanded to the district court for a new trial to determine the amount of damages due Dobler in accordance with the law set forth in this opinion. From this amount the district court will allow Malloy a setoff to the extent that he can prove damages in the inferior construction of his home as the result of Dobler's phase of the work on his home.' Dobler v. Malloy, Supra, at p. 52.

Upon remand, a new trial was held before a different judge. He permitted the owner to amend the pleadings to allege (1) specific damages for defects in the house discovered after a flood in May of 1970 (within a month or two after the first trial of the case), due to lack of proper elevation of the house, and (2) a defective joist system. It was alleged that these defects were unknown to the owner at the time of the previous trial and that they were due to the fault of the builder. The builder admits that ample time was allowed between the notice of the amendment and the trial to permit adequate preparation for trial. He claims, however, that the trial court exceeded the scope of its mandate in allowing the amendment.

He cites Gunsch v. Gunsch, 73 N.W.2d 345 (N.D.1955), to the effect that it is the duty of the lower court, upon a remand, to comply with the mandate of the Supreme Court. Of course, this is a correct statement of the law. Our most recent statement on the proposition is found in Bjerken v. Ames Sand & Gravel Co., 206 N.W.2d 884 (N.D.1973).

However, the court is not shackled to the precise pleadings and evidence of the prior trial unless so limited by the terms of the remand. It was held in Kern v. Kelner, 75 N.D. 703, 32 N.W.2d 169 (1948), that upon a remand it is the duty of the district court to examine the opinion of the Supreme Court and to determine from it and from the nature of the case what further proceedings may properly be had in the action, consistent with the decision and order of the Supreme Court and in conformity with law, and, when the controversy has not been finally disposed of, the court below is free to make any order or direction in the further progress of the case not inconsistent with the decision and opinion of the appellate court, and conformable to law and justice, and that the lower court may, unless forbidden by the decision of the appellate court, grant permission to amend the pleadings or file supplemental pleadings where necessary or proper in furtherance of justice.

In the case now before us, the district court permitted an amendment to the counterclaim of the owner to allege damages claimed to have been caused by flooding due to construction of the house at a lower elevation than was agreed upon and the cost of strengthening the structure of the house made necessary by using joists of too broad a span and insufficient strength.

We hold that these amendments were permissible, were within the scope of the mandate, and that they relate to 'damages in the inferior construction of his home as the result of Dobler's phase of the work on his home.'

Upon the retrial, the court, without a jury, determined that Dobler was entitled to recover $7,927.95 plus $371.60 costs on the first trial and appeal, and that the defendants, the Malloys, were entitled to recover from Dobler $5,345.81 damages because of the inferior joist system under the main floor, $12,746.80 for flood damage incurred because of Dobler's failure to construct the house at the elevation agreed upon, and $10,000 diminution in market value of the house as the result of the failure to construct at the elevation agreed upon.

Dobler appealed, alleging as further grounds that Malloy was bound by acceptance of labor and materials by the foreman, Olheiser, that Malloy's damages resulted from his failure to supply adequate plans and specifications, that the court erred in allowing compensation for flood damage occurring after the first trial, and that allowing damages for flooding and reduction in market value caused duplication of damages.

The court made specific findings on many disputed items of costs and expenses in the construction of the house: that the act of Malloys in taking over the construction of the house did not constitute a waiver of defects then existing; that under the contract between the parties it was the duty of Dobler to plan for and install the joists in a manner compatible with the best construction practices in the Dickinson area; that the joists were of less than the best quality and were substantially overspanned; that the parties agreed that the elevation of the Malloy house would be the same as the elevation of the Gackle house a few hundred feet away; and that the Malloys believed that their house was constructed to such elevation until the flood of May 1970, when it was discovered that the elevation of their house was much lower; that if the house had been constructed to the agreed elevation there would have been no damage from flooding in May of 1970; and that the failure to build the house to the agreed elevation resulted in a loss of market value of $10,000. The court also found that David Olheiser, the foreman, was an employee of Dobler and not an agent of Malloy, as contended by Dobler. The findings of fact of the court, trying the case without a jury, are binding upon us unless clearly erroneous. Rule 52(a), N.D.R.Civ.P.

In addition to hearing all the testimony and having an opportunity to observe the demeanor of the witnesses, the trial judge, with the consent of the parties, made a personal inspection of the Malloy house. Such a view of the premises aided him in understanding and applying the evidence adduced at the trial. Little v. Burleigh County, 82 N.W.2d 603 (N.D...