Horton v. Emerson
| Decision Date | 03 April 1915 |
| Docket Number | 1915 |
| Court | North Dakota Supreme Court |
Rehearing denied May 4, 1915.
Appeal from District Court, Ward County, Leighton, J.
From a judgment in plaintiff's favor and from an order denying a motion for a new trial, defendant appeals.
Affirmed.
Cowan & Adamson and H. S. Blood, for appellant.
As a general rule there is no implied contract except in the absence of one expressed by the parties. 4 Cyc. 327, and cases cited; Marshall v. Jones, 11 Me. 54, 25 Am Dec. 260.
Where a contract provides that payment shall be made only upon the certificate of the architect, unless the plaintiff furnishes such certificate or shows that it is wrongfully withheld, no recovery can be had. Weeks v. O'Brien, 141 N.Y 199, 36 N.E. 185; New Teleph. Co. v. Foley, 28 Ind.App. 418, 63 N.E. 56; Boden v. Maher, 95 Wis. 65, 69 N.W. 980; Coorsen v. Ziehl, 103 Wis. 381, 79 N.W. 562; John Pritzlaff Hardware Co. v. Berghoefer, 103 Wis. 359, 79 N.W. 564; McGlauflin v. Wormser, 28 Mont. 177, 72 P. 428.
Where a builder voluntarily fails to substantially comply with his contract, he cannot compel the owner to either accept the building, or to pay for it. Anderson v. Todd, 8 N.D. 158, 77 N.W. 599; Perry v. Quackenbush, 105 Cal. 299, 38 P. 740; Schindler v. Green, 7 Cal. Unrep. 233, 82 P. 631; Elliott v. Caldwell, 43 Minn. 357, 9 L.R.A. 52, 45 N.W. 845; Ashley v. Henahan, 56 Ohio St. 559, 47 N.E. 573; Smith v. Brady, 17 N.Y. 190, 72 Am. Dec. 442; Anderson v. Pringle, 79 Minn. 433, 82 N.W. 682; Crouch v. Gutmann, 134 N.Y. 45, 31 N.E. 271, 30 Am. St. Rep. 609, see note at p. 616.
Mere occupancy and use of a building erected on lands of the owner does not warrant an interference of acceptance of the work. 6 Cyc. 67, and cases there cited; Anderson v. Todd, 8 N.D. 158, 77 N.W. 599; Wildey v. Fractional School Dist. 25 Mich. 419; Bozarth v. Dudley, 44 N.J.L. 304, 43 Am. Rep. 373.
Where plaintiff has departed from his contract and has been permitted to recover, the measure has been the contract price less the amount of diminished value to the building. Smith v. Brady, 17 N.Y. 173, 72 Am. Dec. 422.
In a prior action, where the dismissal is because of the status of the claim, the judgment there extinguishes plaintiff's right to recover in any subsequent action, so long as the rights of the parties remain unchanged. 24 Am. & Eng. Enc. Law, 806, and cases cited; 23 Cyc. 1194, 1289, and cases cited; Millikan v. Werts, 14 Ind.App. 223, 42 N.E. 820.
E. R. Sinkler, for respondent.
Where an action for the foreclosure of a mechanic's lien fails, the plaintiff may sue upon a quantum meruit. Anderson v. Todd, 8 N.D. 158, 77 N.W. 599; Marchand v. Perrin, 19 N.D. 794, 124 N.W. 1114.
The measure of such recovery is the contract price less compensation for imperfections of work or materials. In other words, a recovery may be had for the amount of added value to the owner's property. Lighthall v. Colwell, 56 Ill. 108; Fuller v. Rice, 52 Mich. 435, 18 N.W. 204; Mosaic Tile Co. v. Chiera, 133 Mich. 497, 95 N.W. 537; Sheldon v. Leahy, 111 Mich. 29, 69 N.W. 76; Matthews v. Farrell, 140 Ala. 298, 37 So. 325; Higgins Mfg. Co. v. Pearson, 146 Ala. 528, 40 So. 579; Barnwell v. Kempton, 22 Kan. 314; McKnight v. Bertram Heat & Plumbing Co., 65 Kan. 859, 70 P. 345; Walsh v. Jenvey, 85 Md. 240, 36 A. 817, 38 A. 938; Orem v. Keelty, 85 Md. 337, 36 A. 1030; Gross v. Creyts, 130 Mich. 672, 90 N.W. 689; Yeats v. Ballentine, 56 Mo. 530; Keith v. Ridge, 146 Mo. 90, 47 S.W. 904; Clapper v. Mendell, 96 Mo.App. 40, 69 S.W. 669; Decker v. School Dist. 101 Mo.App. 115, 74 S.W. 390; Empire Coal & Coke Co. v. Hull Coal & Coke Co., 51 W.Va. 474, 41 S.E. 917; Cope v. Beaumont, 104 C.C.A. 292, 181 F. 756; Merritt & Co. v. Layton, Del. , 75 A. 795; Scholz v. Schneck, 174 Ind. 186, 91 N.E. 730; R. D. Burnett Cigar Co. v. Art Wall Paper Co., 164 Ala. 547, 51 So. 263; Rubin v. Cohen, 129 A.D. 395, 113 N.Y.S. 843; Adams v. Burbank, 103 Cal. 646, 37 P. 640; Reed v. Phillips, 5 Ill. 39.
The disclosure of a special contract at the trial of an action on a quantum meruit will not defeat the action, but will merely limit the amount of recovery. Henderson v. Mace, 64 Mo.App. 393; Scott v. Congdon, 106 Ind. 268, 6 N.E. 625.
Even though such a contract was not substantially performed, the contractor still has his right of action on quantum meruit. If the property derives any benefit from the services done and materials furnished by the contractor, he must pay for their value, not exceeding the contract price. 15 Am. & Eng. Enc. Law, 1903; Katz v. Bedford, 77 Cal. 319, 1 L.R.A. 826, 19 P. 523; Blakeslee v. Holt, 42 Conn. 226; Smith v. Scott's Ridge School Dist. 20 Conn. 312; Eldridge v. Rowe, 7 Ill. 92, 43 Am. Dec. 41; Dermott v. Jones, 23 How. 220, 16 L. ed. 442; Rubin v. Cohen, 129 A.D. 395, 113 N.Y.S. 843; Thomas v. Ellis, 4 Ala. 108; Merriweather v. Taylor, 15 Ala. 735; Taylor v. Renn, 79 Ill. 181; Gleason v. Smith, 9 Cush. 484, 57 Am. Dec. 62; Allen v. McNew, 8 Humph. 46; English v. Wilson, 34 Ala. 201; McKinney v. Springer, 3 Ind. 59, 54 Am. Dec. 470; Major v. McLester, 4 Ind. 591; McClay v. Hedge, 18 Iowa 66; Morford v. Mastin, 6 T. B. Mon. 610, 17 Am. Dec. 168; Hayward v. Leonard, 7 Pick. 181, 19 Am. Dec. 269; Freeman v. Aylor, 62 Mo.App. 613; Payne v. Hodge, 71 N.Y. 598; Aikin v. Bloodgood, 12 Ala. 221; 50 Century Dig. § 28; Caffrey v. Omilak Gold & Silver Min. Co., 4 Cal. Unrep. 601, 36 P. 388; Schwartzel v. Karnes, 2 Kan.App. 782, 44 P. 41; Skillings v. Norris, 50 Me. 72.
A plea of tender is an admission of plaintiff's demand, to the extent of the tender. Birmingham Paint & Roofing Co. v. Crampton, Ala. , 39 So. 1020; Uedelhofen v. Mason, 201 Ill. 465, 66 N.E. 364; La Salle County v. Hatheway, 78 Ill.App. 95; Metropolitan Nat. Bank v. Commercial State Bank, 104 Iowa 682, 74 N.W. 26; Mahan v. Waters, 60 Mo 167; Young v. Borzone, 26 Wash. 4, 66 P. 135, 421; Murray v. Cunningham, 10 Neb. 167, 4 N.W. 953; Cobbey v. Knapp, 23 Neb. 579, 37 N.W. 491.
The pleading of a party, made and filed in another action, is competent evidence against him. 1 Enc. Ev. 424, 425; Shafter v. Richards, 14 Cal. 125; Purcell v. St. Paul F. & M. Ins. Co., 5 N.D. 109, 64 N.W. 943; Cook v. Barr, 44 N.Y. 156; O'Riley v. Clampet, 53 Minn. 539, 55 N.W. 740.
The former judgment between these parties, which is a dismissal of the action, cannot be pleaded as res judicata in this action. Bray v. Booker, 6 N.D. 530, 72 N.W. 933; 24 Am. & Eng. Enc. Law, 775; Arnold v. Grimes, 2 Iowa 1.
A party seeking to avail himself of a former judgment as conclusive evidence, or as a bar to a subsequent action, must affirmatively show that the question which precludes relief in the second action was determined in the former one. Sanford v. King, 19 S.D. 334, 103 N.W. 28; Erickson v. Russ, 21 N.D. 208, 32 L.R.A. (N.S.) 1072, 129 N.W. 1025; Germania Bldg. & L. Asso. v. Wagner, 61 Cal. 349; Marean v. Stanley, 5 Colo.App. 335, 38 P. 395; Bice v. Marquette Opera-House Bldg. Co., 96 Mich. 24, 55 N.W. 384.
A judgment merely denying the lien claimed will not bar an action on the debt. 23 Cyc. 1194, 1311; Geary v. Bangs, 138 Ill. 77, 27 N.E. 462; Selbie v. Graham, 18 S.D. 365, 100 N.W. 755; McPherson v. Swift, 22 S.D. 165, 133 Am. St. Rep. 907, 116 N.W. 76; Teigen v. Drake, 13 N.D. 502, 101 N.W. 893; Kammann v. Barton, 23 S.D. 442, 122 N.W. 418.
It must appear that the precise question was litigated in the former action. Strother v. Butler, 17 Ala. 733; Hanchey v. Coskrey, 81 Ala. 149, 1 So. 259; Campbell v. Butts, 3 N.Y. 173; Davis v. Tallcot, 12 N.Y. 184; Munro v. Meech, 94 Mich. 596, 54 N.W. 290; Jepson v. International Fraternal Alliance, 17 R. I. 471, 23 A. 15; Carter v. Carter, 14 N.D. 66, 103 N.W. 425; 23 Cyc. 1300.
Plaintiff, as surviving partner of the firm of Lord & Horton, seeks in this action to recover upon the quantum meruit for labor and material furnished to defendant at his request in the erection of a building in the city of Minot, known as the Arcade Building. A jury was expressly waived in the district court, and at the conclusion of the trial findings of fact and conclusions of law favorable to the plaintiff were made, and pursuant thereto plaintiff had judgment for the sum of $ 1,792.92 and interest, together with the costs. Thereafter defendant moved for a new trial, which motion was denied, and the case is here on appeal, both from the judgment and from such order.
Before noticing the specifications of error, a brief statement of the important facts will be made. On June 3, 1907, Lord & Horton, contractors and builders of Minot, entered into a written contract with the defendant, a resident of said city, whereby such contractors undertook and agreed for and in consideration of the sum of $ 16,000 to erect for the defendant in such city, a two-story and basement brick structure according to certain plans and specifications therein referred to. Such contract price was to be paid as follows: $ 3,000 upon the completion of the foundation for such building, $ 6,000 when the brick work was completed and the roof on and the window openings closed up, and the final payment of $ 7,000 within thirty days after the completion of the building and when certificates for the same are issued.
That between June 15, 1907, and January 15, 1908, the said firm of Lord & Horton furnished the necessary labor and material for such building, and caused the same to be erected under the contract aforesaid, and shortly after the completion of such building the defendant went into possession thereof and occupied the same continuously until the trial. That he has...
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