Horton v. Emerson

• Citation: 152 N.W. 529,30 N.D. 258
• Parties: HORTON v. EMERSON.
• Decision Date: 04 May 1915
• Court: United States State Supreme Court of North Dakota

30 N.D. 258

152 N.W. 529

HORTON

v.EMERSON.

Supreme Court of North Dakota.

April 3, 1915.

Rehearing Denied May 4, 1915.

Syllabus by the Court.

Where a contractor has constructed a building under a special contract, but has failed to substantially comply with its terms, preventing a recovery on such contract, he will be permitted to recover on the quantum meruit for the reasonable value to the owner, not exceeding the contract price, of his labor and materials of which such owner has received and is receiving a benefit, provided the contractor did not intentionally or in bad faith neglect or omit to fulfill such contract.

A judgment in defendant's favor in a former action, based on the contract, and for a foreclosure of a mechanic's lien, is not res adjudicata in the case at bar for numerous reasons stated at length in the opinion.

A judgment in a former suit between the same parties is not conclusive in a subsequent action, involving different issues, where it does not appear that the identical question sought to be concluded was necessarily tried and determined in such prior litigation.

An admission contained in defendant's answer in a former suit of the amount owing by him to plaintiff, and a tender of such sum to plaintiff, although afterwards withdrawn, is competent testimony in plaintiff's behalf.

Evidence examined, and held, that the findings of fact of the trial court have ample support in the evidence.

Appeal from District Court, Ward County; Leighton, Judge.

Action by W. W. Horton, surviving partner of the firm of Lord & Horton, against R. H. Emerson. From a judgment for plaintiff and denial of a new trial, defendant appeals. Affirmed.

Cowan & Adamson and H. S. Blood, all of Devils Lake, for appellant. E. R. Sinkler, of Minot, for respondent.

FISK, C. J.

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 30 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 made payments on such contract aggregating $13,600. In March, 1908, Lord & Horton commenced an action in the district court of Ward county against the defendant for the purpose of foreclosing a mechanic's lien which they had theretofore filed against said building, for the balance alleged to be due them under such written contract. Defendant answered the complaint in such action and, among other things, alleged:

“Defendant further alleges that heretofore, to wit, and on or about the 4th day of February, 1908, this defendant tendered in lawful money of the United States, to the said Lord & Horton, the sum of $1,792.92, that being the whole sum due and payable under the terms and conditions of said contract, after deducting the items of damage hereinbefore specified, and allowing for all just claims due to said plaintiffs, which said tender was by said plaintiffs refused, and thereupon this defendant did, on said 4th day of February, 1908, deposit in the Second National Bank of Minot the said sum last above mentioned to the order of said Lord & Horton; that said sum is at the date hereof on deposit in said bank, to the order of said plaintiffs, and is sufficient in amount to completely pay said plaintiffs all sums due and owing to said plaintiffs.”

Also:

“That the said sum so specified still remains on deposit in said bank, and this defendant now offers to produce the same in court, in full payment of all claims of said plaintiffs.”

That, as thus alleged, defendant in fact made such tender and deposit, but prior to the trial of said action withdrew the same and amended his answer accordingly. On February 4, 1908, defendant caused to be served upon Lord & Horton a written notice as follows:

“You will please take notice that I have this day deposited to your credit in the Second National Bank of Minot, N. D., the sum of $1,792.92 and directed said bank to pay the said amount to you upon receipt from you in full for all accounts by me owing to you this day.”

Such foreclosure action came on for trial before the late Judge Charles F. Templeton of the First judicial district, and, at the conclusion of the trial, findings of fact and conclusions of law favorable to the defendant were made and judgment entered dismissing the action. The gist of these findings of fact is to the effect that Lord & Horton, the plaintiffs, failed to comply with the contract in numerous particulars detailed in such findings, clearly showing a failure to substantially perform the contract. It is a very significant fact, which must not be overlooked, that this distinguished jurist, who possessed a keen legal mind and a high sense of equity and justice, not only did not find as a fact that plaintiffs willfully or intentionally departed from the terms of the contract, but he expressly refused to so find. We have examined his original findings of fact and conclusions of law, which disclose that he refused to make the following finding:

“The court further finds, as conclusions of fact, that the plaintiffs did not intend to comply with the contract and did intend in some particulars at least to deceive the defendant, Emerson, with reference to what was being furnished, and did endeavor to deliver second and third class work and material in place of first class; that the plaintiff took no care and, in places at least, did not intend to follow the plans and specifications with reference to the matters of construction, resulting in a very inferior combination, greatly damaging the building; that the building is damaged by virtue of failure to comply with the plans and specifications in the sum of not less than $3,431.10, thus offsetting the whole amount claimed to be due by the plaintiffs.”

The refusal to make such requested findings, as well as the refusal of various conclusions of law requested, unmistakably disclose that it was the intention of Judge Templeton to hold merely that no recovery could be had by plaintiffs on the contract, and he studiously avoided making any finding or conclusion which would in the least hamper or interfere with plaintiffs' right to recover upon the quantum meruit. His letter addressed to plaintiffs' counsel, and which was introduced in evidence in the case at bar, fully corroborates us in the foregoing statement. The letter is as follows:

“Grand Forks, N. D., Oct. 26, 1908.

L. W. Gammons, Minot, N. D.-Dear Sir: I have yours of the 24th regarding the case of Lord & Horton v. Emerson. My view of the case is that the present action should be dismissed upon the merits. The action is brought upon the contract to foreclose a lien. An action of this nature under the terms cannot be maintained because there was not a substantial compliance with the contract and the architect's certificate was not fraudulently or arbitrarily withheld. That this action cannot be maintained under these circumstances see Anderson & Hunter v. Todd, 8 N. D. 158 . As the lien cannot be upheld, plaintiffs cannot in this action recover a money judgment. Bray v. Booker, 6 N. D. 526, 531 . I should not find all of the defendant's proposed findings in any event. If you wish to submit a transcript of the testimony and argue the matter before I sign any findings, I will give you a reasonable time to do so. Let me know your desire in the matter by early mail, as I am anxious to dispose of it.

Yours truly, Charles F. Templeton.”

At the trial of the present action but little testimony was introduced. The only evidence offered as to the reasonable value of the work and materials that went into the construction of such building was by stipulation that if one of plaintiffs' witnesses, who was absent, were present and sworn, he would testify that such reasonable value was $16,355.15. Proof was then offered to show that the plaintiff Horton is the surviving partner of the firm of Lord & Horton. Defendant was then called for cross-examination and testified to the fact that he took possession of the building shortly after its completion and has been in possession ever since; also that he paid to Lord & Horton on the contract the sum of $13,600; also that he tendered to Lord & Horton, prior to the commencement of the foreclosure action, the said sum of $1,792.92 and deposited the same to their credit in the Second National Bank and served written notice...