Farrington v. Freeman
| Decision Date | 17 November 1959 |
| Docket Number | No. 49841,49841 |
| Citation | 99 N.W.2d 388,251 Iowa 18 |
| Parties | Leo W. FARRINGTON, d/b/a Farrington Construction Company, Appellant, v. R. J. FREEMAN and Goldie Freeman, Appellees. |
| Court | Iowa Supreme Court |
Ries & Osmundson, Iowa City, for appellant.
Jack C. White, Iowa City, for appellees.
Plaintiff is a building contractor. On October 3, 1956, he entered into a written contract with defendant R. J. Freeman for the erection of a home at a price of $15,900. He promptly proceeded to erect the home. In March, 1957 defendants moved into the basement. By August 1957 plaintiff had finished the house, and defendants occupied the full home. They had paid $12,500 on the contract. In August of 1957 they refused to pay any more, claiming there were certain defects in the house for which they should have credit, and for which they filed a counterclaim in this action. On January 2, 1958, plaintiff filed a mechanics lien. The trial court foreclosed the mechanics lien, but held plaintiff owed defendants $843 on their counterclaim. Plaintiff has appealed from this allowance.
Appellant urges three grounds as basis for reversal of the trial court's decision as to the counterclaim.
1. If the terms of the contract are established by a preponderance of the evidence and there is shown a substantial performance of its terms the builder is entitled to the contract price plus extras, less reasonable sums for small items not furnished and reasonable damages on account of slight defects in performance.
2. The Plaintiff's denial of all of the allegations of a Counterclaim puts the burden of proving every fact essential to recovery upon the Defendant.
3. The Court erred in not allowing Plaintiff interest from March, 1957.
I. The account between the parties as alleged in plaintiff's petition, and which items are not in dispute, is as follows:
This is the amount for which plaintiff filed lien and for which he started foreclosure action on March 25, 1958.
The only controversy between the parties is whether or not allowances should be made to defendants as to some defects and omissions alleged by them in their counterclaim, and the amount of such allowances.
Defendants did not offer any witnesses in support of their items in the counterclaim except a real estate man as to the over-all value of the property and a merchant who was a dealer for what is known as Rusco windows.
Plaintiff tendered the testimony of another contractor as to the defective items claimed by defendants, Mr. Roland Smith who was an inspector and appraiser for the Veterans Administration, and Mr. and Mrs. Vernon Rodgers who had purchased the home from defendants some months prior to the action for $26,500. Fortunately we have the benefit of some disinterested and neutral witnesses outside of plaintiff and defendants.
We will list the items claimed by defendants under their counterclaim, together with the testimony of Mr. Ronald Smith and Mr. and Mrs. Rodgers as to such items. Mr. Smith qualified himself by testifying that he had inspected and appraised approximately 270 new homes erected under the provisions of the Veterans Administration. Mr. Freeman was the only witness as to the value of the defects or omissions claimed by him. He was an insurance man and did not qualify himself as to the competence of his evidence concerning the value of the defective or omitted items. However, this was an equity action and the trial court admitted his testimony and, in fact, it was admitted without any objection on the part of plaintiff's counsel as to its competency or as to the competency of Mr. Freeman. The items claimed by Mr. Freeman under the counterclaim, and the testimony of Mr. Roland Smith and Mr. and Mrs. Rodgers as to such items is as follows:
1. Repairs needed to the wall and ceiling in the living room; $150. As to this item Mr. Smith testified: 'In the living room ceilings and walls it is hard to detect any trouble there * * *.'
2. Mr. Freeman testified he spent $7 for knobs on the cupboard. Plaintiff contends this item was included in his hardware allowance of $75.
3. Cost of correcting the kitchen linoleum; $250. Mr. Smith testified: 'In the kitchen, if you got down on your hands and knees, and got a light just right you could see a little indenture there at one plywood joint that was adjacent to a linoleum seam.'
4. Cost of repairing and properly fitting the windows; $30. Mr. Smith testified: 'There could be some slight adjustment made to the windows but not any of them are what you would call really bad.'
5. Cost in connection with properly fitting the basement door; $50. As to this item Mr. Smith testified:
6. A new sink and lavatory would cost $110. Mr. Smith testified: With reference to this item plaintiff contends the sink was in perfect condition when the plumber installed it and when he turned it over to defendants. He claims if there were any cracks they occurred through actions of defendants. In connection with this it should be noted that while defendants moved into the basement in March 1957, they never raised any question concerning the kitchen sink until August. Mr. and Mrs. Rodgers, the purchasers of the house from defendants, testified: 'We are satisfied with the work, the material, and the way the house is constructed and have no complaints about anything to be done.' This testimony applies to all defects claimed, and supports all the testimony of Mr. Smith.
7. Cost of mirror and towel bars not furnished by plaintiff; $60. Plaintiff admits this item is correct and we will make an allowance for it.
8. The cost of Rusco windows; $646. This figure is supported by Mr. Johnson, the Rusco dealer. Plaintiff was obligated to install Rusco windows under the terms of his contract. He installed aluminum windows of another type. He claims defendants approved of this change, but defendants deny such approval. Plaintiff testified the windows installed by him cost $510. Defendants should, therefore, be allowed a credit of $136, the difference between the cost of Rusco windows and the aluminum windows.
9. Cost of installing cement steps and walk on the south side of the house; $200. Plaintiff denies this was a part of the contract. After defendants sold the house to Mr. and Mrs. Rodgers the steps and walk were installed by plaintiff for Mr. and Mrs. Rodgers and they paid for it; defendants suffered no loss as to this item.
On the basis of the above analysis defendants should have credit for $196 under the counterclaim.
Under a contract such as between the parties to this action, where substantial performance has been proven by the builder, he is entitled to his contract price less deduction for the value of any defects in performance. Stratmeyer v. Hoyt, 189 Iowa 85, 174 N.W. 243; Lautenbach v. Meredith, 240 Iowa 166, 172, 35 N.W.2d 870; Huffman v. Hill, 245 Iowa 935, 65 N.W.2d 205; Peterman v. Hardenbergh, Iowa, 97 N.W.2d 152; Littell v. Webster County, 152 Iowa 206, 131 N.W. 691, 132 N.W. 426; Hayes v. Ramsey, 205 Iowa 167, 217 N.W. 808; Miller v. Gray, 205 Iowa 1305, 217 N.W. 228; Garrison Grain & Lumber Co. v. Farmers' Mercantile Co., 181 Iowa 568, 164 N.W. 791.
The policy or theory of substantial performance by the contractor, and deductions as to the reasonable value of any defects or omissions, has been established in many decisions of this court. In the rather early case (1911) of Littell v. Webster County, supra, 'substantial performance' was defined: "Substantial performance,' as defined by the cases, permits only such omissions or deviations from the contract as are inadvertent or unintentional, are not due to bad faith, do not impair the structure as a whole, are remediable without doing material damage to other parts of the building in tearing down and reconstructing, and may without injustice be compensated for by deductions from the contract price. So much is allowed in building contracts because of the hardship to the contractor if slight, unintentional deviations should bar his recovery.' [152 Iowa 206, 131 N.W. 694.]
As a general legal proposition the burden rested on plaintiff to prove the performance of the contract made by him. Huffman v. Hill, supra; Miller v. Gray, supra; Hayes v. Ramsey, supra; 57 C.J.S. Mechanics' Liens § 308f, p. 963; 36 Am.Jur., Mechanics' Liens, § 235, page 151.
We have reaffirmed the policy of substantial performance in two recent cases. Huffman v. Hill, supra (1954) and Peterman v. Hardenbergh, su...
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