Fargo Glass & Paint Co. v. Smith

Citation66 N.D. 389,266 N.W. 100
Decision Date18 March 1936
Docket NumberNo. 6350.,6350.
CourtNorth Dakota Supreme Court
PartiesFARGO GLASS & PAINT CO. v. SMITH.

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. Under the provisions of chapter 208 of the Session Laws of 1933, where an action properly triable to a jury is tried to the court without a jury, the appellant, if he so desires, may obtain a trial de novo in this court, and in such case this court decides the facts independently of the trial court's determination. The findings of the trial court in such case, however, are entitled to appreciable weight because of the superior advantage which the court has in weighing the evidence and determining the credibility of witnesses.

2. Where a party enters into a contract with the owner of a building to install a store front, furnishing the labor and material therefor, and a third party injures the front while it is in the process of installation, the owner of the building is not responsible for the damages when it is not shown that the damage accrued through his negligence; but when the contract has been completed so that the contractor is entitled to recover under his contract, loss occasioned by such third party falls upon the owner of the building and the contractor is not responsible therefor.

3. Where there has been a substantial performance of a contract for the installation of a store front so that the contractor is entitled to recover under his contract, the contract is completed.

4. Evidence examined, and it is held that there was such substantial performance of the contract involved as to entitle plaintiff to its pay, and that the sum of $100 is a sufficient allowance to the defendant for any omissions or defects incurred.

Appeal from District Court, Cass County; P. G. Swenson, Judge.

Action by the Fargo Glass & Paint Company against Mrs. J. W. Smith, whose true Christian name is Louise H. Smith, wherein defendant filed a counterclaim. From a judgment for plaintiff, defendant appeals.

Affirmed.

Nilles, Oehlert & Nilles, of Fargo, for appellant.

Lawrence, Murphy, Fuller & Powers, of Fargo, for respondent.

BURR, Judge.

The plaintiff sues to recover $1,576, with interest from January 5, 1932, upon a contract for the furnishing of labor and material for the installation of a store front, and alleges that it “substantially performed and completed said contract.”

The defendant denies the work was done correctly, and counterclaims alleging: “It will be necessary to tear out and completely install practically the entire front, etc.”

The case was tried to the court without a jury. The court found the plaintiff did substantially and in good faith perform the contract, but allowed the defendant a deduction of $100 from the contract price as the cost of labor and material necessary to correct some minor defects. The parties stipulated that the defendant was entitled to a further credit of $23. Judgment for the plaintiff was ordered in the sum of $1,453, with interest, and the defendant appeals, demanding a trial de novo.

There are twelve specifications of error, with three statements as to insufficiency of the evidence to sustain the findings.

Four of these assignments of error relate to the reception of evidence. One deals with the reception of a photograph of the store front. We see no harm in its reception.

Another assignment deals with a statement attributed to the architect employed by the defendant, and made after the front was installed. We think there was error in receiving it, but it certainly was error without prejudice. The court was dubious of its reception at the time, and, though admitting it, said it might strike it out later. Our attention is not called to any motion to strike it out, but in any event we assume the court did not consider it.

A third assignment is with reference to acts done by the plaintiff after the commencement of the action. It appears the plaintiff sent employees to make some “changes and corrections, to tighten things up if there were any places needing tightening, and to replace the vitrolite” damaged. Defendant insists that ordinarily anything done by the plaintiff after the commencement of this action in an attempt to perform his contract comes too late.” But the court was doubtful as to its reception, and stated: “I may not consider it when I come to decide the case.” Whatever error there was in the reception was without prejudice. We assume the court did not consider erroneous testimony, and the memorandum opinion does not show that either of these disputed points had anything to do with the decision. In any event, as we try the case de novo, we do not consider erroneously received testimony.

The fourth assignment deals with two copies of letters mailed to the defendant by counsel for the plaintiff, and received in evidence over the objection of the defendant. They deal with offer of performance. We cannot say it was error to receive them, as they have some bearing upon the good faith of the plaintiff in its attempt to remedy any defects trivial in character. The defendant sets up specifically certain claimed defects in the installation of the front. Thereafter, the plaintiff filed a supplemental complaint in which it alleged that on the day after the commencement of the action it undertook to make corrections and replacements and was prevented by the defendant; that whatever defects there were could be remedied at a cost not to exceed $50; and that it was “ready, able and willing to do and perform on the 5th day of January, 1932.”

The defendant strenuously asserts that any offer to perform made by the plaintiff after the commencement of the action should be disregarded.

Where no supplemental pleadings are filed, the rights of the parties to an action must be determined by the facts existing at the time the action was commenced. Robertson et al. v. Howard, 83 Kan. 453, 112 P. 162; 1 C.J. 1149. But here the character of the demand remained the same; a new and different cause of action is not stated. Thus it was proper to consider the supplemental complaint. See Luckett v. Hammond et al., 188 Ind. 484, 124 N.E. 675.

The plaintiff is not seeking to recover for what it did after the commencement of the action. The supplemental complaint attempts to show that even if there were no complete performance, there was such performance substantial in nature as entitled the plaintiff to recover on the original claim. Performance must be in good faith in accordance with the contract, and where the performance is not perfect, yet nevertheless is substantial, the question of good faith is involved. If it be a fact that the defects were more or less trivial, the attempt of the plaintiff to remedy them and its prevention by the defendant certainly have a bearing upon the good faith of the parties, when we consider the nature of the contract.

[1][2][3] The main issue is one of fact. The appeal is taken under the provisions of chapter 208, Session Laws of 1933, amending section 7846 of the Supplement. Where an action properly triable to a jury is tried to the court without a jury, the appellant, if he so desires, may obtain a trial de novo in this court. This being so, this court is “required to decide the facts in this case independently of the trial court's determinations.” But “the findings of the trial court, by reason of the superior advantage which he has in weighing the evidence and in determining the credibility of the witnesses, are entitled to appreciable weight.” Thede v. Rusch, 65 N.D. 34, 256 N.W. 409, 410.

It appears from the memorandum decision that, “At the conclusion of the testimony the Court, accompanied by the attorneys for the parties, viewed the premises involved in this action.” The trial court thus had the benefit of examining the store front itself and obtained a visual knowledge of the alleged defects.

The defendant claims, as showing a want of substantial compliance, that the metal transoms “are installed in a careless, slovenly and unworkmanlike manner, do not fit and must be replaced as directed by the architect * * *”; that “the metal cornice * * * was installed and constructed in such a careless, slovenly and unworkmanlike manner that water runs behind the cornice on to the wooden framework of the window, causing it to decay * * *”; that the vitrolite over the window “is chipped, broken and damaged and must be replaced”; that “the division bars in the front * * * are so carelessly and unskillfully, negligently and improperly constructed and installed that daylight, snow and dust comes and sifts through the cracks and open spaces on to the tables and fixtures installed and used in said premises, and on to the floor of said premises”; that the center panel “is so improperly * * * constructed and installed * * * that the said architect * * * directed that it be removed * * *”; that “the metal jambs * * * bulge badly; the division bars * * * are so loose and negligently installed that the plateglass rattles badly when the wind blows * * * the Vitrolite construction * * * is not installed in strict accordance with the Vitrolite company's specifications. * * *” In addition, it is alleged that the vitrolite was damaged by the use of...

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7 cases
  • Fargo Glass & Paint Company, a Corp. v. Smith
    • United States
    • North Dakota Supreme Court
    • March 18, 1936
  • Nord v. Nord
    • United States
    • North Dakota Supreme Court
    • December 9, 1938
    ...to try the case anew upon the record and to decide the facts independently of the trial court's determination. Fargo Glass & Paint Co. v. Smith, etc., 66 N.D. 389, 266 N.W. 100;State ex rel. Board of Railroad Commissioners v. Burt State Bank, 66 N.D. 529, 267 N.W. 337. Such findings of the ......
  • State ex rel. Com'rs v. Burt State Bank
    • United States
    • North Dakota Supreme Court
    • May 21, 1936
    ...805, 211 N.W. 587;Vorachek v. Anderson et al., 54 N.D. 891, 896, 211 N.W. 984;Thede v. Rusch, 65 N.D. 34, 256 N.W. 409;Fargo Glass & Paint Co. v. Smith [N.D.] 266 N.W. 100, and cases cited in these decisions), but we are not satisfied with the quality of the proof presented to us. It is cle......
  • Champ v. Brown, 30653.
    • United States
    • Minnesota Supreme Court
    • March 27, 1936
  • Request a trial to view additional results

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