Erskine v. Johnson

• Citation: 36 N.W. 510,23 Neb. 261
• Parties: ERSKINE v. JOHNSON.
• Decision Date: 25 January 1888
• Court: Supreme Court of Nebraska

23 Neb. 261

36 N.W. 510

ERSKINE

v.JOHNSON.

Supreme Court of Nebraska.

January 25, 1888.

Syllabus by the Court.

A provision in a building contract that “no new work of any description done on the premises, nor any work of any kind whatsoever, shall be considered as extra, unless expressly contracted for in writing before its commencement,” will not preclude the parties from waiving the same, and making changes in the original contract by parol.

Where a contract is entered into between an owner and contractor for the erection of a dwelling-house according to certain plans and specifications prepared by an architect named, the work to be under the supervision and control of such architect, and performed to his satisfaction, and it is found that a mistake has been made in the plans and specifications, by reason of which changes are necessary at an increased expense, and are made by the direction of such architect in order to enable the contractor to complete his contract, the owner will be liable to such contractor for the extra cost, although probably, as between the owner and the architect, the latter will be liable.

Where a party entered into a contract with a contractor for the erection of a dwelling-house for a son-in-law of the former, the work to be completed by a day named; and there was testimony tending to show that such party had assured the contractor, while the work was being performed, that “no damages, if it is not done according to the time specified;” and there was no proof that the son-in-law wished to occupy the dwelling before the time of its completion: held, that a jury was justified in returning no damages for the delay.

Error to district court, Lancaster county; S. M. CHAPMAN, Judge.

This action was brought by Isaac E. Johnson against Horatio N. Erskine to recover a balance due on a contract. Judgment for plaintiff and defendant brings error.Sawyer & Snell, for plaintiff in error.

J. L. Caldwell, for defendant in error.

MAXWELL, J.

Johnson brought an action against Erskine to recover the sum of $46.48, balance on a contract for the erection of a frame dwelling-house; $5 for extra work in grading around said house; and for altering a cellar window and one bay window, $9. Erskine, in his answer, admits that there is due the plaintiff on the contract the sum of $45.82. As a counter-claim, Erskine alleges that Johnson was to complete the building on the first day of January, 1886, but that he failed to do so until the middle of March of that year, to Erskine's damage in the sum of $62.60; second, that the painting of the house was not done in a good and workman-like manner, whereby Erskine sustained damages in the sum of $15. On the trial of the cause the jury returned a verdict in favor of Johnson for the sum of $52.48, and, a motion for a new trial having been overruled, judgment was entered on the verdict.

A copy of the contract is set out in the bill of exceptions, from which it appears that Johnson was to erect the cottage on a specified lot in the city of Lincoln, and to furnish all the materials, and finish, and deliver in true, perfect, and thoroughly workman-like manner for said Erskine; for which he was to receive the sum of $1,410. Payments were to be made on estimates every 14 days; 20 per cent. to be retained until the completion of the work, and the work to be performed “agreeably to the plans, drawings, and specifications prepared” by an architect named, to the satisfaction and under the direction of said architect. The contract also contained the following provision: “No new work of any description done on the premises, nor any work of any kind whatsoever, shall be considered as extra, unless expressly contracted for in writing before its commencement. The proprietor will not in any manner be answerable or accountable for any loss or damage that shall or may happen to the said works, or any part or parts thereof, respectively, or for any of the materials or other things used and employed in finishing and completing the said works, or for any injury to any person or persons, either...