Fargo Glass & Paint Company, a Corp. v. Smith
| Decision Date | 18 March 1936 |
| Docket Number | 6350 |
| Court | North Dakota Supreme Court |
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.
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.
Nilles, Oehlert & Nilles, for appellant.
The rights of the parties to an action must be determined according to the facts existing at the time the action was commenced. 1 C.J. 1149; 49 C.J. 506; 1 R.C.L. 340.
No amendment will be permitted to charge upon a cause of action subsequently arising when none in fact existed at the time of the filing of the complaint. Mono Co. v. Flannigan, 130 Cal. 105, 62 P. 293; Brown v. Galena Min. & Smelting Co. 22 Kan. 528, 4 P. 1013; Barton v. Rogers, 166 Ga. 802, 144 S.E. 248; Dean v. Metropolitan R. Co. 119 N.Y. 540, 23 N.E. 1054; Wisher v. Ocumpaugh, 71 N.Y. 113; Prouty v. Railroad Co. 85 N.Y. 272; Hollingsworth v. Flint, 101 U.S. 591; Dickerman v. New York, N.H. & H.R. Co. 72 Conn. 271, 44 A. 228; Woodridge v. Pratt & W. Co. 69 Conn. 304, 37 A. 688; Goodrich v. Stanton, 71 Conn. 419, 42 A. 74.
The right of the petitioner to maintain the present petition must depend upon the facts as they existed when it was instituted. Hunnewell v. Taylor, 6 Cush. 472.
An owner is not responsible for the negligent acts of an independent contractor. 39 C.J. 1324; Solberg v. Schlosser, 20 N.D. 307, 127 N.W. 91, 30 L.R.A.(N.S.) 1111.
In the exercise of due care men must be guided by those considerations which ordinarily regulate the conduct of human affairs. Drennen v. Jordan, 181 Ala. 570, 61 So. 938, 23 A.L.R. 981; Southern R. Co. v. Carter, 164 Ala. 110, 51 So. 149; Montgomery Street R. Co. v. Smith, 146 Ala. 316, 39 So. 757; Davis v. John L. Whiting & Co. 201 Mass. 91, 87 N.E. 199; Crow v. McAdoo (Tex. Civ. App.) 219 S.W. 241.
There is a distinction between injuries resulting from the work itself and where the wrongful or careless act is in connection with some collateral work or matter. Davis v. Levy, 39 La.Ann. 551, 2 So. 395, 4 Am. St. Rep. 225; Homan v. Stanley, 66 Pa. 464, 5 Am. Rep. 389; Ruehl v. Lidgerwood Rural Teleph. Co. 23 N.D. 6, 135 N.W. 793, Ann. Cas. 1914C, 680.
The contractee is not liable for injuries to the contractor's servants due to the negligence of another independent contractor or of his employees. 39 C.J. 1343; Darling v. Passadumkeag Log Driving Co. 85 Me. 221, 27 A. 109.
Where one contracts to furnish lumber and materials, and construct a chattel, or build a house, on land of another, he will not ordinarily be excused from performance of his contract by the destruction of the chattel or building without his fault before the time fixed for the delivery of it. Wells v. Calnan, 107 Mass. 514; Dermott v. Jones, 2 Wall. 1; School Dist. v. Bennett, 27 N.J.L. 513; Tompkins v. Dudley, 25 N.Y. 272; Butterfield v. Byron, 153 Mass. 517, 27 N.E. 667, 25 Am. St. Rep. 654.
Under a general denial defendant may prove plaintiff's failure to execute the work in accordance with the contract. 9 C.J. p. 876, § 213; Fox v. Davidson, 55 N.Y.S. 524.
Under a general denial, the defendant may prove facts of any nature which rebut the plaintiff's claim of substantial performance. Clark v. Ford, 106 N.Y.S. 462; Griffin v. Long Island R. Co. 101 N.Y. 348, 4 N.E. 740; Milbank v. Jones, 141 N.Y. 340, 36 N.E. 388.
The fact that the defendant in addition to a general denial specifically pleads nonperformance in some particulars does not admit performance in other particulars. 9 C.J. p. 871; Symms-Powers Co. v. Kennedy (S.D.) 146 N.W. 570.
Where a case is brought to the supreme court for a trial de novo, the appellate court is not concluded by the findings of the trial court, either as to the law or as to the facts of the case. Englert v. Dale, 25 N.D. 587, 142 N.W. 169; Cretors v. Troyer, 63 N.D. 231, 247 N.W. 558; Christianson v. Farmers Warehouse Asso. 5 N.D. 438, 67 N.W. 300; Doyle v. Doyle, 60 N.D. 768, 236 N.W. 631.
Where the builder does not substantially perform the contract, and full performance has not been waived or excused, he is not entitled to the compensation payable under the terms of the contract on the completion of the work. 9 C.J. 156; Nollman v. Lewis, 5 N.D. 344, 65 N.W. 686; Anderson & Hunter v. Todd, 8 N.D. 160, 77 N.W. 599; Braseth & Co. v. State Bank, 12 N.D. 486, 98 N.W. 79; Marchand v. Perrin, 19 N.D. 794, 124 N.W. 1112.
The burden of proof, in an action by a builder for compensation, is governed by the general rules regulating the burden of proof in civil cases. 9 C.J. p. 877.
The burden is on the party alleging it to show an excuse or defective performance or nonperformance, or for a delay in performance. 9 C.J. p. 877.
The doctrine of substantial performance does not apply where the variations from the terms of the contract are so substantial that an allowance out of the contract price of damages for deviations would not give the owner essentially what he contracted for. Anderson v. Pringle, 79 Minn. 433, 82 N.W. 682; Leeds v. Little, 42 Minn. 414, 44 N.W. 309; Elliott v. Caldwell, 43 Minn. 357, 45 N.W. 845; Hogland v. Sortedahl, 101 Minn. 359, 112 N.W. 408.
Lawrence, Murphy, Fuller & Powers, for respondent.
Where a contractor for building has carried out his undertaking in good faith, though minor defects exist through his inadvertence, not complying with specifications, but capable of repair, he may recover the contract price less such sum as would place the building in the condition called for in the contract. Graves v. Allert, 104 Tex. 614, 142 S.W. 869, 39 L.R.A.(N.S.) 591; Jacob & Youngs v. Kent, 23 A.L.R. 1429; Atkinson v. Jackson Bros. 38 A.L.R. 1377; Kasbo Constr. Co. v. School Dist. 48 N.D. 423, 184 N.W. 1029; Anderson & Hunter v. Todd, 8 N.D. 160, 77 N.W. 599.
The plaintiff sues to recover $ 1576.00, 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 $ 100.00 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 $ 23.00. Judgment for the plaintiff was ordered in the sum of $ 1453.00, 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...
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