Evans v. McConnell

• Citation: 63 N.W. 570,99 Iowa 326
• Parties: EVAN F. EVANS, Appellant, v. I. C. MCCONNELL
• Decision Date: 25 May 1895
• Court: United States State Supreme Court of Iowa

63 N.W. 570

99 Iowa 326

EVAN F. EVANS, Appellant, v. I. C. MCCONNELL

Supreme Court of Iowa, Des Moines

May 25, 1895

Appeal from Des Moines District Court.--HON. JAMES D. SMYTHE, Judge.

ACTION for balance claimed to be due for work done upon, and materials furnished for a dwelling house, cistern, and cess-pool; also for damages for slander. From a decree for McConnell, and in favor of certain lien-holders, Evans appeals.

Affirmed.

A. M Antrobus and C. L. Poor for appellant.

Blake & Blake and Kelley & Cooper for appellee.

KINNE J., ROTHROCK, C. J.

OPINION

KINNE, J.

I.

In August, 1892, Evans commenced an action against McConnell, claiming that the sum of five thousand two hundred and fifty dollars was due him for materials furnished and work done upon a certain dwelling house. In a second count, plaintiff claimed damages in the sum of five thousand dollars for slanderous words spoken by defendant of plaintiff. December, 1892, defendant filed an answer and cross-bill in equity, denying every allegation in the second count of the petition, and alleging that any words he had spoken of and concerning plaintiff were true. He denied that plaintiff furnished the materials and work set forth in the first count of his petition, and denied any indebtedness to plaintiff. Further answering, he says he entered into a contract in writing with plaintiff to erect for him a dwelling house, and that plaintiff had not performed said contract. In his equitable cross-bill he alleged that on July 14, 1891, he entered into a written contract with Evans, which is set forth, wherein Evans agreed with McConnell to, under the direction of the latter's architect, and to his satisfaction, do the work and furnish the materials for and complete a dwelling house in accordance with certain plans and specifications mentioned. Division two of said contract provided that the owner might make changes as the work progressed, without avoiding the terms of the agreement, which changes or alterations should be paid for or deducted according to the rate at which the work had been taken. By division six, of said contract, the owner, after giving three days' notice by the architect, is authorized to take control of the work and complete the same in case the contractor refuses or neglects to supply proper materials or skilled workmen, or otherwise fails to perform any of the agreements on his part. The contract also provided for a consideration of seven thousand three hundred and fifty dollars, to be paid at times therein fixed. After entering upon the work, Evans agreed in writing to make certain changes or alterations in the work from the plans, at prices agreed upon, which, so far as material to this controversy, may be considered hereafter. It is averred that Evans neglected and refused to furnish proper materials and skilled workmen, and to prosecute the work in accordance with his contract, and that in May, 1892, he abandoned the work, and McConnell was compelled to and did take charge of and procure the completion of the work; that Evans failed to pay for labor and materials which he caused to be procured for said house, and various mechanic's liens had been filed against the property, in the aggregate sum of two thousand two hundred and ninety-nine dollars and sixty-four cents, which were incumbrances upon the property; that the liens of Churchill Drug Company and T. H. Dowler had been foreclosed, and decrees entered against the property, and that actions were pending upon the other claims; that McConnell was damaged in the sum of five hundred dollars by reason of defective material furnished and unskilled work done by Evans in the attempted performance of the contract. McConnell claims that, including cash paid out on account of the work and the liens aforesaid, and damages to which he is entitled, Evans should be charged with eight thousand seven hundred and thirty-five dollars and fourteen cents; that he is entitled to credit, the contract price, and extra work done and materials furnished, in the total sum of seven thousand six hundred and three dollars and sixty-five cents,--leaving a balance of one thousand one hundred and thirty-one dollars and forty-nine cents due McConnell. McConnell asks an accounting; that the lien holders be required to exhibit their claims; that a decree be entered as to how said liens shall be canceled; and that for the sum due him he may have judgment against Evans; and for equitable relief. On January 6, 1893, Evans filed a reply to McConnell's answer and cross-bill, alleging that, after the making of the contract, he began work on the house, but McConnell concluded to make a better house, and from time to time requested many material and expensive changes which are set out in detail; that he deprived Evans of the exclusive control and management of his workmen, and assumed to manage and control the work, impairing the cost and efficiency thereof; that, without cause, he refused to permit plasterers to work on the house, to the loss of Evans; that McConnell represented to material men who furnished material for the house and caused them to believe that they might lose their claims, and warned them not to sell plaintiff on credit; that he induced them to file liens upon the building; wherefore said material men refused to sell Evans on credit, and McConnell refused to furnish the cash to buy, although he then owed Evans on the work done. For these and other reasons, it is averred that McConnell cannot rely upon said contract; that there is no dispute between Evans and the material men as to the amount due them. Other allegations of the cross-bill are denied. January 17, 1893, Evans moved the court to transfer to the equity side of the docket, and set down for trial, as an equitable issue, count one of Evans' petition, and the issues joined thereon, also the cross-bill, and the issues joined thereon. This motion was sustained, to which ruling an exception was taken. March 30, 1893, Evans filed a supplemental reply, admitting the purchase of certain materials from certain lien-holders, and that they had filed liens as stated in the cross-bill. Evans moved to transfer the cause to the law docket, and to set the cause down for trial to a jury, which motion was overruled, and an exception taken. Evans dismissed the slander count of his petition. August 31, 1892, McConnell filed his bill in equity, asking for a settlement and accounting, and for a judgment of one thousand one hundred and thirty-one dollars and forty-nine cents. This bill sets forth in substance the same facts as appear in McConnell's cross-bill, filed in Evans' Case. December 29, 1892, Evans made answer, in which he pleaded the facts set forth in his petition and reply in the other action, and asked that the trial of this cause be postponed until the other one had been tried to a jury. December 29, 1892, certain lien-holders filed their answers and cross-petitions, but no notice thereof was served upon Evans. March 30, 1893, Evans filed a supplemental answer, alleging that, the same day this suit was commenced, he began an action in this court against McConnell, demanding judgment for ten thousand dollars; that the latter answered; that plaintiff herein pleads the same facts and asks the same relief as in this case, and that said case is yet undetermined. He pleads said action in abatement of this one. He admits the claim of the lien-holders. March 30, 1893, Evans moved to transfer this case to the law docket, which motion was overruled and excepted to. McConnell filed answers to the cross-bills of the lien-holders. McConnell filed a motion to consolidate the two actions, which was sustained and excepted to. June 17, 1893, the court, on its own motion, referred the cause to Hon. E. S. Huston, as sole referee, to hear and determine all issues of fact and law, and report at the next term of court, to which order Evans excepted. Trial was had before said referee, at which time Evans objected to the trial of any issues of fact before the referee.

The findings of the referee are lengthy, and we summarize them as follows: That the contract was entered into for the construction of the house for seven thousand three hundred and fifty dollars, and its performance secured by bond of C L. Poor, for two thousand dollars; that Evans proceeded to do the work until May 5, 1893, when, the work being unfinished, it was taken out of his hands, and finished by another; that the work dragged from the beginning; the plastering did not begin until the week before Christmas in 1891, and then McConnell stopped it for a time, claiming it was unsafe to plaster then; that on May 2, 1892, McConnell, through the architect, served a notice upon Evans that, owing to his failure to comply with his contract, one Sanson would complete the work; that the latter completed it at an expense of six hundred and fifteen dollars; that liens were filed as claimed by McConnell; and that the latter informed material men that they must not trust Evans on the credit of the building; that the delay in the work was caused by its taking more time to do the stone work than was anticipated; workmen were hard to get; time was lost in making changes, some because of errors of the contractor; Evans was without means, and had difficulty to obtain materials; the weather in the spring of 1892 was unfavorable; that, at the time, McConnell was insisting upon closer joints and better stone work; he did not promise to pay therefor, nor did Evans claim any compensation therefor; that, if Evans was entitled to recover for better stone work than the specifications provided for, he would be entitled to one thousand six hundred dollars therefor, but there was never any promise, expressed or implied, on part of...