Fuller v. Rosinski, 41933

• Decision Date: 30 September 1971
• Docket Number: No. 41933,41933
• Citation: 488 P.2d 1061,79 Wn.2d 719
• Court: Washington Supreme Court
• Parties: Donald FULLER, doing business as H. R. Fuller & Son, Appellant, v. Ed ROSINSKI and the marital community consisting of Ed Rosinski and Jane Doe Rosinski, his wife, Respondents.

Page 719

79 Wn.2d 719

488 P.2d 1061

Donald FULLER, doing business as H. R. Fuller & Son, Appellant, v. Ed ROSINSKI and the marital community consisting of Ed Rosinski and Jane Doe Rosinski, his wife, Respondents.

No. 41933.

Supreme Court of Washington, Department 2.

Sept. 30, 1971.

Jeremiah M. McCormick, Seattle, for appellant.

Clay Nixon, Seattle, for respondents.

ROSELLINI, Associate Justice.

In this action, the plaintiff sought to recover the unpaid balance on a contract to construct a rock wall and alpine area, and to prepare the ground and plant a lawn on the defendants' residence property. The balance claimed due was $511.76. As an offirmative defense, the defendants alleged that the work had not been done properly and that it would cost as much or more than the balance due to remedy the defects.

The evidence showed that the work was done on a residential lot which had not been previously cultivated or graded, the house being situated in a new development. The plaintiff hauled dirt for fill and leveled and sloped the yard, put in humus and seeded the lawn. He also furnished rocks and constructed a rock wall and alpine area for planting. Afterwards, some of the rocks in the wall slipped. The plaintiff discovered a drainage sump behind these rocks. At his own expense, he extended the sump area in an attempt to eliminate the problem.

A drainage problem developed on the lawn and the plaintiff, for an agreed sum, laid drain tile under the lawn to carry the water away. The earth over the drain tile later settled, leaving a rut which the plaintiff did not correct. He stated that this rut had never been called to his attention. There was evidence that this drainage system did not satisfactorily solve the problem of water collecting on the lawn, although the plaintiff contended that the standing water was caused by faulty gutters on the house or was only a temporary condition occurring after heavy rains.

There also was evidence that the humus was not spread evenly when the soil was prepared and the result was a lawn which was spongy in places and too hard in other spots. The defendants' expert witness, a nurseryman, testified that the condition of the lawn could be corrected with reasonable success without digging it up and reworking the soil. However, he also was of the opinion that the rocks in the wall were not set properly and that they should all be removed and the wall reconstructed. He said that the heavy equipment necessary to do this job would destroy the lawn and consequently it would have to be replanted. He said that his charge to do all of this work would be about $2,400. The total charge which the plaintiff had made for the rock wall, alpine area and lawn was $1,346.70. There was no criticism of the alpine area.

The trial court found that the plaintiff did not install a 'proper' lawn and rock wall and that he was not 'scrupulous' in installing the drainage tiles. Finding that the work was of no value to the defendants but rather caused them damage in the amount of $2,400, the court gave judgment for the defendants in that amount.

Error is assigned to these findings and to the conclusion that the defendants were entitled to a judgment on their cross-complaint.

We have reviewed the record and find in it support for the findings to the extent that they show that the defendants did not receive the quality of lawn and rock wall for which they contracted. There is, however, no evidence to support a finding that the work done was of no value whatsoever. Apparently, the trial court based this finding on the testimony of the nurseryman that he would charge $2,400 to do the work over again. This, of course, was almost twice as much as the plaintiff had charged. There was no testimony that the amount which the witness said he would charge was a reasonable price for this work.

But, in any event, we think that it cannot be inferred that the work actually done was of no value to the defendants simply because it would cost as much or more to redo part of the work. It cannot be denied that the defendants are the beneficiaries of grading and leveling work which does not have to be redone, and of an alpine area which is satisfactory. They have a rock wall which is not laid in the most workmanlike manner but which is nevertheless substantially serving its purpose, insofar as the record shows. Also, they have a lawn which is not aesthetically satisfactory but which is superior to the bare and unworked earth which covered the property before the lawn was planted. The finding that the plaintiff's performance of its contract damaged the defendants' property is not supported by testimony or other evidence in the record.

As the plaintiff contends, the trial court applied the wrong measure of damages. It must be acknowledged that the court was at a disadvantage in that there was no evidence introduced which would support a finding of the amount of damage, using the proper measure. The burden was upon the defendants to prove their affirmative defense and it was error to penalize the plaintiff for the defendants' failure to sustain this burden. Such a penalty resulted when the court entered a judgment based upon the only evidence offered by the defendants.

The rule which governs the question of damages where there has been a defective performance of a contract of this kind is that which is set forth in 1 Restatement of Contracts § 346 (1932) and which...