De Honey v. Gjarde

• Decision Date: 29 May 1925
• Docket Number: 18632.
• Citation: De Honey v. Gjarde, 134 Wash. 647, 236 P. 290 (Wash. 1925)
• Parties: DE HONEY et ux. v. GJARDE et al.
• Court: Washington Supreme Court

236 P. 290

134 Wash. 647

DE HONEY et ux. v. GJARDE et al.

No. 18632.

Supreme Court of Washington

May 29, 1925

Department 2.

Appeal from Superior Court, King County; Gilliam, Judge.

Action by J. H. De Honey and wife against Peder P. Gjarde and another. From a judgment for plaintiffs, defendants appeal from an order denying them a new trial on question of loss of profits, plaintiffs appeal. Affirmed on both appeals.

Tucker Hyland & Elvidge and Mary H. Alvord, all of Seattle, for appellants.

Thomas J. Casey and Paul S. Dubuar, both of Seattle, for respondents.

FULLERTON J.

On April 5, 1922, J. H. De Honey and wife entered into a contract with Peder P. Gjarde, by the terms of which Gjarde agreed to erect for the De Honeys a building on a described tract of land, in the city of Seattle, to be used as a dancing academy. The contract provided that Gjarde should furnish all the necessary labor and materials and erect the building according to plans and specifications agreed upon between the parties, prepared by one Svarz as architect. The contract price was $27,329, and the building was to be completed on or before 110 days from the date of the contract. Gjarde entered at once upon the performance of the work, completed it within the time fixed by the contract, and was paid the contract price.

De Honey and wife took possession of the building some time in August, 1923, and began to use it for the purposes for which it was constructed. The building gave no trouble during the dry weather which followed the time possession was taken, but in the latter part of October, when the rainy season began, water came into the hall of the building used for dancing in considerable quantities; so considerable, in fact, as to damage the furnishings and to cause the dancing floor to swell and buckle. The De Honeys conceived that the water came into the room because of a defective and leaking roof, and called upon Gjarde to repair it. Some correspondence passed between them, resulting in a denial on the part of Gjarde of liability. The De Honeys caused the roof to be repaired by another person, and caused some additional ventilation to be installed in the building, whereupon water ceased to come into the room, and the walls thereof became dry soon thereafter.

The De Honeys, as plaintiffs, thereafter began the present action to recover against Gjarde and his bondsman, the Fidelity & Deposit Company of Maryland, in damages for the injuries caused by the water. They alleged that Gjarde failed to construct the building in accordance with the plans and specifications, in that he----

'negligently and carelessly failed to turn up the felt and flashings onto the walls of said building not less than 18 inches as the contract and good workmanship required, but instead turned the same up not to exceed 12 inches in any place, and around the greater portion of the walls, not to exceed 4 inches, and negligently and carelessly failed to put the same up tight against said walls or to nail or otherwise fasten or cement the same at sufficiently close intervals so that as a result the upper portions of the same were allowed to be loose and to bulge out from said walls, so that water could go through where the same should have been fastened tight to the walls and from thence to down under the roofing and thence into the building; that where there were columns erected just inside said side walls, making numerous angles, the said felt and flashings were in some places pressed in so hard by them as to have cracked and broken the same, leaving openings for the water to go through, while in other places, they negligently and carelessly failed to press the same into the angles sufficiently but on the contrary allowed the same to be loose and to bulge out at the top where it should have been tightly joined to the wall, so that the water could run down into the building as hereinbefore mentioned; that they negligently and carelessly allowed approximately 100 holes and openings to be and remain where the water could leak through, said holes and openings, for the most part being located where said felt and flashings should have been joined tight to the wall and columns, and where the same had been broken as hereinbefore mentioned, which were thereupon hidden by them by placing the counter flasing so as to conceal the same; that the top of said counter flashings was fastened by them to a wooden strip set in the concrete wall; that they negligently placed around said wooden strip certain plaster which was made out of poor material, in that there was too much sand in the same, so that the same was so porous that it allowed the water to run through the same and back of said counter flashings, and that much of said plastering material fell out after the same became water soaked; that the felt and flashings around that ventilators were not properly fastened by them, as hereinbefore stated, so that the same were loose and bulged at the top, allowing the water to leak in; that the paper used by them on the slopes where the roof slopes steeply from the upper portion of the roof to the 'valley' portion of the roof below, was of poor quality, in that the same was checked and cracked; that the paper used by them on the roof and slopes was so put together by them that the same would leak at the joints and seams, the cause thereof not being known to plaintiffs; that along the south side of said building there were leaks under the windows; that they wholly failed to place any galvanized iron boxes in the corners, surrounding the drain pipes, but instead placed boxes made of cheap tin, none of which were securely soldered, so that the water leaked out of them, instead of going into the pipes; that no screens were placed in said boxes until after the first rains hereinafter mentioned, and on approximately the 17th day of November, 1923, thus allowing said pipes to become clogged; that, by reason of the matters hereinabove set forth, said building, when turned over to the plaintiffs on or about August 29, 1922, did not have a roof capable of turning water during an ordinary rain, but on the contrary said roof was in such condition as to be leaky in wet weather--none of which defects were discovered by plaintiffs or known to them until the rains hereinafter mentioned occurred.'

Damages were claimed in the following sums for the following items:

Repairing roof ............................... $ 541 35

Carpenter work ................................. 400 30

Redecorating the walls and work on

damaged paintings ............................. 403 65

Plumbing work ................................... 25 47

Tinning .......................................... 5 25

Resurfacing the dancing floor .................. 600 00

Redecorating the walls and ceiling ........... 1,500 00

Additional work on paintings ................... 600 00

Damage to seats ................................ 800 00

Damage to piano ................................ 500 00

Damage to curtains ............................. 300 00

Depreciation of building (not repairable) ... 10,000 00

Loss of profits because of nonusability of

building ................................... 25,000 00

The first five of the items of damage were for money actually expended for the work therein indicated. Other items, in so far as they relate to work, were the estimates of witnesses of the reasonable cost of performance. The remaining items are self-explanatory. After issue had been joined on the complaint, a trial was entered upon before a jury. During the course of the trial the court withdrew from the consideration of the jury the item of damage relating to loss of profits. The jury on the remaining items returned a general verdict for the plaintiffs in the sum of $14,500.25. Within due time the defendants moved for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The court denied the motion for judgment notwithstanding the verdict, but entered an order to the effect that it would grant the motion for a new trial unless within 20 days thereafter the plaintiffs would in writing remit from the amount of the verdict the sum of $10,000; further ordering that, in case such remission be made, the plaintiffs have judgment for the amount of the remainder of the verdict. The remission was filed within the required time, and thereupon judgment was entered in favor of the plaintiffs for the sum of $4,500.25.

The plaintiffs also moved for a new trial on the question of damages for loss of profits, which motion the court denied. Both parties appeal--the defendants from the judgment entered, and the plaintiffs from the order of the court refusing them a new trial on the question of the loss of profits.

Taking up the appeal of the defendants, they first assign error on the ruling of the court denying them a new trial. Under this head they present a number of questions; the first being that the verdict was the result of passion and prejudice on the part of the jury. It is said that this is evidenced (1) by the amount of the verdict, (2) because the verdict is contrary to the evidence, and (3) because the trial court so found. Noticing these in their order, of the first it can be said that the verdict was well within the testimony introduced on the part of the plaintiffs. The total sum claimed by the plaintiffs, and which their evidence tended to prove, omitting the claim of $25,000 for loss of profits which the court took from the jury, was $15,676.02. The general verdict of the jury was for $14,500.25. Manifestly it seems to us this is not so close an approximation to the plaintiffs' claims as to furnish conclusive proofs that the jury gave the evidence no consideration, but followed blindly the...