H.P. Droher and Sons v. Toushin

• Decision Date: 04 October 1957
• Docket Number: No. 36866,36866
• Citation: 250 Minn. 490,85 N.W.2d 273
• Parties: H. P. DROHER and SONS, Appellant, v. Victor TOUSHIN and Zelda Toushin, Respondents, and Anchor Casualty Company, third-party-defendant, Appellant.
• Court: Minnesota Supreme Court

Page 273

85 N.W.2d 273

250 Minn. 490

H. P. DROHER and SONS, Appellant, v. Victor TOUSHIN and Zelda Toushin, Respondents and Anchor Casualty Company, third-party-defendant, Appellant.

No. 36866.

Supreme Court of Minnesota.

Oct. 4, 1957.

Syllabus by the Court

1. Under the evidence in this case, whether a contractor graded the area adjacent to a residence under construction in accordance with the plans and specifications so as to cause surface water to drain away from the house instead of toward it presented only a question of fact. On conflicting evidence, the determination of this question was for the trial court.

2. In an action involving a construction contract to build a family residence whether the plans and specifications provided by the owner were adequate; whether the work was done in a workmanlike manner in accordance with the contract; and whether the house was built according to the plans and specifications are all questions of fact for the trial court's determination. The evidence in this case sustains the court's findings that there was a failure to build in a workmanlike manner.

3. In a breach of a construction contract, the measure of damages is that, where there has been a substantial good-faith effort to perform the contract but there are defects of such a nature that the contract has not been performed according to its terms, which defects can be remedied without the destruction of a substantial part of the building, the owner is entitled to recover the cost of making the work conform to the contract but, where it appears that the cost of remedying the defects is grossly disproportionate to the benefits to be derived therefrom, the owner is entitled to recover the difference between the value of the property as it would have been if the contract had been performed according to its terms and the value in its condition as constructed.

4. The owner of the property is competent to testify to the value of the property. However, in this case that evidence, standing alone, is of little probative value. Here, the result is due to plaintiff's failure to introduce any evidence of value, but the result seems so incredible that a new trial on the issue of damages is granted on condition that plaintiff waive taxation of all costs and disbursements on this appeal.

Hoffmann, Donahue & Graff and T. Eugene Thompson, St. Paul, for appellants.

Linn J. Firestone, Firestone & Firestone, St. Paul, for respondents.

KNUTSON, Justice.

This is an appeal from an order of the court denying a motion of plaintiff and third-party defendant for amended findings or a new trial.

In 1952, defendants, who are husband and wife, acquired a tract of land in St. Paul for $5,500. They hired one James H. Speckmann to prepare plans and specifications for a single-family residence on this land. Speckmann was not a registered architect or engineer but had considerable practical experience in preparing plans and specifications for houses of this type. Thereafter a contract was let to plaintiff, a corporation with offices in St. Paul, for the construction of the house according to the plans and specifications prepared by Speckmann. The original contract price was $41,000, which later was raised to $43,996.52 as a result of changes made during the course of construction. Among other things, the contract contained the following provisions:

'1. Contractor agrees to erect upon said lot a home for the owners in accordance with the plans, specifications and working drawings prepared by James H. Speckman, 802 St. Paul Building, St. Paul, Minnesota, which plans and specifications are dated May 28, 1952 and bear the number 5209, and to that end will provide all materials and all labor necessary to complete said structure in accordance with said plans, specifications and working drawings, and Contractor further agrees to do everything required by the general conditions set forth in the specifications and plans, and to perform all of said work in a first class workmanlike manner. Contractor further agrees that the work under this contract will be started as soon as possible and practicable; that the work will be prosecuted diligently to completion without any delay on the part of the contractor; and that the work will be substantially completed on June 1, 1953.

'6. The parties agree that the plans and specifications hereinbefore referred to are a part of this contract the same as if incorporated at length herein.'

The specifications, among other things, provide:

'1. General Conditions of the Contract

'Unless otherwise specified, all materials shall be new and all workmanship shall be of the first best quality.

'The contractor shall provide and maintain protection of all of his work from damage and shall protect the Owner's property from injury or loss during the execution of the Contract. * * *

'2. Grading:

'(A) On all sides of the building, the Contractor shall bring the finish grades to the lines shown on the drawings. All finish grades shall slope away from the building to the natural grades, the topsoil being used for this purpose.

'13. Carpenter Work:

'(A) The Contractor shall provide all necessary labor and materials and perform all carpenter work of every nature whatsoever to be done. He shall lay out all work and be responsible for all measurements, and keep a competent foreman in charge at all times. All work shall be done in a first-class workmanlike manner, level, straight, plumb, and true, and in strict accordance with plans and specifications. Any discrepancies or errors that may be found on the plans, or in the specifications, shall be reported immediately to the Owner or Architect for correction. Under no circumstances shall an advantage be taken of said discrepancies or errors.

'24. Extras or Credits:

'(A) Any deviation from these specifications or plans involving an extra charge or credit must be agreed to in writing between the contracting parties before the change is made. The Contractor shall not take advantage of any discrepancies found. If any discrepancies are found they shall be referred to the Owner or Architect for correction immediately and in no case shall the Contractor proceed in doubt.'

During the course of construction, defendants paid plaintiff the sum of $38,738.58 to apply upon the contract, leaving a balance of $5,257.94. During the course of the trial, certain adjustments were conceded so that plaintiff contends that the actual balance due under the contract is $5,197.94.

Construction on the house was commenced on January 8, 1953. On January 12, 1953, plaintiff, as principal, and thirdparty defendant, Anchor Casualty Company, as surety, executed a construction bond with the usual conditions guaranteeing the performance of the contract according to its terms.

The house was so far completed that defendants were able to move into it on June 23, 1953. Defendant Victor Toushin, for a number of years, has acquired a great deal of model railroad equipment. As a hobby he has built much additional equipment, all according to scale. This equipment was moved into the basement of the house a few days prior to occupancy thereof by defendants, and much of it, packed in paper cartons, was left on the floor of the basement or on tables. During the night of June 23 and the morning of June 24, there occurred a heavy rainstorm. A great deal of water entered the basement, apparently through two windows which had been left partly open, causing a flooding of the floor to a depth of from four to six inches. As a result, much of the model railroad equipment was ruined beyond repair or was so damaged that it is of little value. The record does not disclose whether plaintiff or defendants were responsible for leaving the windows open.

Plaintiff commenced this action to recover the balance due on the contract. Defendants claim that the house was not constructed properly according to the plans and specifications under which the contract was let to plaintiff. One of their main claims is that a steel post in the basement, which supports a beam on which the floor joists rest, was too low and that as a result there was a deflection in the level of the floor and that other parts of the house, including the roof, following this same deflection, sagged noticeably. They contend also that the yard was not graded to the proper slope, as a result of which the water ran into the basement causing much damage to the model railroad equipment.

The case was tried to the court without a jury. The court awarded damages to defendants on their counterclaim in the sum of $20,000 for failure to construct the house properly and $2,000 for damage to the model railroad equipment. Offset against this allowance was the sum of $5,075.94, which the court found was due on the contract, leaving a balance due defendants on their counterclaim of $16,924.06.

The questions presented here are: (1) Does the evidence sufficiently support the court's finding that damage to the model railroad equipment was due to plaintiff's negligent failure to grade the yard to the proper slope according to the contract? (2) Does the evidence support the court's finding that the house was improperly constructed? (3) Was the proper measure of damages applied? (4) Does the evidence sustains the amount of damages awarded to defendants?

1. The first issue presents only a question of fact. It is defendants' claim that the grading of the yard was not done according to the plans and specifications. The plans call for grading in such a manner that drainage of surface water would be away from the house. There is ample evidence that on June 23, 1953, when the water damage occurred, surface water drained toward the house rather than away from it. It would be useless to recite in detail the evidence on his issue. It is enough to say that the evidence is conflicting as to whether plaintiff had graded according to the plans or not and that the court accepted the evidence...