Glass v. Wiesner, 38473
| Citation | 172 Kan. 133,238 P.2d 712 |
| Decision Date | 08 December 1951 |
| Docket Number | No. 38473,38473 |
| Parties | GLASS v. WIESNER. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Although a contract to erect structures for the storage of grain contains no express guarantee or warranty by the builder concerning his work there is an implied warranty that they will be constructed so as to serve the intended purpose and there is no substantial compliance by the builder until the work is performed to accomplish such purpose.
2. An implied, as well as an express, guarantee or warranty, may be waived.
3. Where there is no express guarantee or warranty and there are no plans, specifications or drawings for the erection of structures for the storage of grain and the owner undertakes to direct and does direct the builder concerning the manner and sufficiency of construction which is contrary to the expressed judgment and advice of the builder there is no room for application of the doctrine of implied guarantee or warranty by the builder that the structures will sufficiently serve the intended purpose.
4. The record in an action by a builder to recover the balance due and unpaid for material furnished and labor performed in the construction of buildings and for the foreclosure of a mechanic's and materialman's lien, examined, considered and held: (a) The general and special findings of the trial court are sustained by competent evidence; (b) the trial court did not err in the exclusion of evidence or commit any other trial error; and (c) the trial court did not err in overruling defendants' motion for a new trial.
E. J. Malone, of Hays, was on the briefs for appellant.
William Wagner, Jr., of Wakeeney, argued the cause, and W. H. Wagner, of Wakeeney, was with him on the briefs for appellee.
This was an action to recover the balance alleged to be due under a transaction for the erection of certain grain storage facilities and to foreclose a mechanic's and materialman's lien. Judgment was for plaintiff, W. H. Glass, Jr., and the defendant, F. L. Wiesner, alone appeals.
The sufficiency of pleadings is not involved. They need be sketched only sufficiently to ascertain the issues on which the action was tried.
The petition discloses the plaintiff was engaged in the business of selling various steel materials and constructing steel buildings at Wakeeney. The petition alleged and set forth a highly fragmentary written agreement which was as follows:
'Agreement for Construction and Erection of Elevator and Grain Storage (as per drawing)
'In the event there is additional stran steel purchased for the building, as per drawing, over the above the purchase order agreement it will be sold to the party of the first part at the party of the 2nd. part's cost F.O.B. Scott City, thereby foregoing and profit on additional stran steel.
'Bill of material $18,213
'Fabrication & Erection 6,443
'Sales tax 364.26
'Total $25,024.26
'Fred L. Wiesner. 1st party 5-4-49
'W. H. Glass, Jr. 2nd Party'
In addition to the amount claimed under the written contract plaintiff made claim for other materials furnished and labor performed pursuant to the alleged requests of the defendant Wiesner. The structures were erected on the right of way of the Union Pacific Railroad company on which it was alleged Wiesner or the defendant, F. & M. Enterprises, Inc., owned a lease.
These defendants filed an answer which admitted the execution of the written agreement but denied F. & M. Enterprises, Inc., was a party thereto and alleged that on the day the contract was executed plaintiff agreed to construct the storage facilities for the sum of $25,024.26, except for certain cement work to be done and performed by the defendant Wiesner. It was also alleged that prior to the date of contract plaintiff was furnished drawings and that plaintiff on the date of the contract orally informed Wiesner he could build and construct the facilities at that price and they would fully and properly store and hold 130,000 bushels of wheat and such representations and warranties were relied upon by defendant. The answer also alleged certain defects in the construction of the elevator and the quonset addition which resulted in a failure of both the elevator and quonset bins to hold the grain. It further alleged Wiesner was required to repair such defects and that plaintiff was also indebted to him for certain lumber and materials used which belonged to the defendant. It was admitted Wiesner would be indebted to the plaintiff in the sum of $2,966.07 except for the offsets to which he was entitled which exceeded his indebtedness to the plaintiff by the sum of $182.58 for which he asked judgment against the plaintiff.
The defendant also filed a cross petition in which they sought damages by reason of the alleged defective construction of the storage facilities.
In the reply plaintiff denied all new matter contained in the answer, specifically denied any drawings were furnished to him to be used in the construction work and alleged it was orally agreed between him and the defendant Wiesner at about the time the memorandum attached to plaintiff's petition was executed that Wiesner would be solely responsible for the installation of equipment for the bracing of bins, for bracing the quonset, for doors, windows and any and all labor and material over and above the material and erection thereof as disclosed in the memorandum agreement. He also alleged there was no agreement concerning the bracing of the bins except as expressly directed by the defendant. He also denied he had used any lumber belonging to the defendant which had not been returned to him.
Plaintiff testified no drawings referred to in the memorandum agreement were attached thereto at the time it was executed or thereafter. No drawings were introduced in evidence. There appear to have been some pencil sketches which were discussed during the building operations but they were not in evidence. There was sharp conflict in the testimony generally and particularly with regard to the necessary bracing of both the elevator and the quonset addition. Plaintiff, in substance, also testified he...
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...facts of the case to determine if an implied warranty should be created by operation of law. This is what was done in Glass v. Wiesner, 172 Kan. 133, 238 P.2d 712 (1951). The defendant Wiesner relies on the doctrine of implied warranty and cites statements of law from various cases. He lean......
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...object of the contract is to obtain a result * * * the risk of accomplishing such purpose or result is on the builder." Glass v. Wiesner, 172 Kan. 133, 238 P.2d 712, 716. Where, however, the contract provides for the performance of a given undertaking in accordance with prescribed plan and ......
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