Gilbrech v. Kloberdanz

• Decision Date: 08 February 1961
• Docket Number: No. 50234,50234
• Citation: 107 N.W.2d 574,252 Iowa 509
• Parties: Alvin C. GILBRECH, Appellee, v. Peter J. KLOBERDANZ, Appellant.
• Court: Iowa Supreme Court

Page 574

107 N.W.2d 574

252 Iowa 509

Alvin C. GILBRECH, Appellee, v. Peter J. KLOBERDANZ, Appellant.

No. 50234.

Supreme Court of Iowa.

Feb. 8, 1961.

Sams & Dunkelberg, Osage, and Zastrow, Noah & Smith, Charles City, for appellant.

Carl F. Conway, Osage, for appellee.

GARFIELD, Chief Justice.

Plaintiff Gilbrech brought a law action against defendant Kloberdanz for half the cost of fuel used in heating a building owned and occupied by them as tenants in common, half the cost of repairs to the heating plant and half the reasonable value of tending the stoker and removing the ashes. Defendant counterclaimed for half the cost of fuel oil used by him in allegedly heating the building, electricity for the common use of the parties, coal used to heat water for plaintiff, and for damages caused by plaintiff's alleged negligence in maintaining a plumbing facility in the building.

Plaintiff also brought a suit in equity asking that defendant be enjoined from interfering with plaintiff's access to the basement and rightful use of the building and from removing the coils in the furnace.

The two actions were consolidated for trial in equity. From judgment for plaintiff in the law action and decree for him in the equity action defendant has appealed.

Although our review is de novo we give weight to the trial court's decision in each case.

I. On March 1, 1947, plaintiff Gilbrech and defendant Kloberdanz contracted in writing to purchase a 2-story and basement business building in Osage. Defendant was to occupy the ground floor for his cleaning establishment and plaintiff the second floor for the beauty shop operated by him and his wife. For about two years each had occupied his portion of the building as tenant of the previous owner. The contract provides 'Each party shall share equally the fuel bill for heating said building, shall bear the burden equally of firing the furnace * * * and hauling ashes from the building.'

When the building was purchased there were two boilers in the basement--one to heat the building, the other to generate steam for defendant's cleaning purposes. About 1950 or 1951 this second boiler became useless and defendant replaced it with another in a back room on the first floor. This new boiler furnished most of the heat for the first floor although it was mainly intended to supply steam for the cleaning apparatus. Until the fall of 1955 defendant continued to pay for half the coal used in the basement boiler, and half the value of tending the stoker and removing the ashes therefrom. He then refused to make further payments. Plaintiff's law action, commenced in September, 1959, seeks to recover half these items for the heating season 1958-9. As stated, recovery was allowed although the amounts claimed for tending the stoker and removing the ashes were reduced.

Defendant's counterclaim includes a claim for half of 20 per cent of the cost of fuel oil used by him in the newer boiler on the theory that a fifth of the fuel was used to heat the lower floor of the building. Before filing his counterclaim in February, 1960, defendant never asked plaintiff to pay for any part of the fuel oil. Plaintiff testified without contradiction there was little if any reduction in the coal bills for the basement furnace after defendant installed the boiler on the first floor.

It must be admitted there is a measure of injustice in requiring defendant to bear half the cost of operating the basement furnace from which plaintiff derives principal benefit. However, after giving weight to the trial court's decision we are inclined to affirm this part of the judgment in the law action on two main considerations.

In the first place, the decision accords with the practical construction the parties themselves placed on the provision of the written contract heretofore quoted. As stated, for some four to five years under the present heating arrangement, defendant without objection continued to pay half the cost of coal for the basement furnace and to share equally the burden of operating it. Throughout this period and an additional four years he made no claim against plaintiff for any part of the cost of fuel oil used in the newer boiler.

The practical construction placed upon a contract of doubtful meaning by the parties themselves will usually be adopted by the courts. Darnall v. Day, 240 Iowa 665, 671, 37 N.W.2d 277, 280, and citations; Martin v. A. W. Moeller & Son, 241 Iowa 1033, 1034-1035, 44 N.W.2d 345, 346, and citations; Navy Gas & Supply Co. v. Schoech, 105 Colo. 374, 98 P.2d 860, 126 A.L.R. 1225, 1229.

II. The other reason for the conclusion stated in the previous division grows out of an earlier action brought by plaintiff in 1957 to recover half the cost of fuel used in the basement furnace and half the value of caring for it. Defendant pleaded in defense to that action by way of offset that he was providing heat for his portion of the building at a cost in excess of the amount claimed by plaintiff. On November 10, 1958, following trial of the previous action, the court rejected the defense and established plaintiff's claim as amended on October 9, 1958. No appeal was taken from the judgment.

The effect of that judgment is res judicata of plaintiff's right to recover the principal items he claims in the present law action and the insufficiency of the defense interposed thereto. Stucker v. County of Muscatine, 249 Iowa 485, 491, 87 N.W.2d 452, 456, and citations; Lynch v. Lynch, 250 Iowa 407, 94 N.W.2d 105.

Further, a substantial part of defendant's counterclaim is barred by rule 29, Rules of Civil Procedure, 58 I.C.A., which provides, subject to an exception not here applicable: 'A pleading must contain a counterclaim for every cause of action then matured, and not the subject of a pending action, held by the pleader against any opposing party and arising out of the transaction or occurrence that is the basis of such opposing party's claim * * *. A final judgment on the merits shall bar such a counterclaim, although not pleaded.' See In re Hoelscher's Estate, 249 Iowa 444, 450, 87 N.W.2d 446, 450; Mensing v. Sturgeon, 250 Iowa 918, 926, 97 N.W.2d 145, 147.

III. Defendant's counterclaim seeks $91 damage caused by leakage of water to the first floor from the tank connected with plaintiff's second-floor toilet. This occurred in 1959, after the previous action was disposed of. Clearly this part of the counterclaim is not barred by the judgment in that action. The water leakage came from a crack which suddenly appeared in the toilet tank. There is no pleading or evidence of any specific negligence of plaintiff in this occurrence. Defendant relies on the doctrine of res ipsa loquitur. The trial court held the doctrine inapplicable and denied the claim.

Under the doctrine referred to where (1) injury is caused by an instrumentality under the exclusive control of a defendant (plaintiff here), and (2) the occurrence is such as in the ordinary course of things would not happen if reasonable care had been used, the happening of the injury permits but does not compel an inference that defendant (plaintiff here) was negligent. Thompson v. Burke Engineering Sales Co., 251 Iowa ----, 106, N.W.2d 351, 353, and citations.

There is no question the toilet tank was in plaintiff's exclusive control. And we are inclined to the view the occurrence was such as in the ordinary course of things would not happen if reasonable care had been used. We think, therefore, the res ipsa doctrine is applicable. At least it...