Hulst v. Benevolent Hall Ass'n

• Decision Date: 29 July 1896
• Citation: 68 N.W. 200,9 S.D. 144
• Parties: HULST et al. v. BENEVOLENT HALL ASS'N.
• Court: South Dakota Supreme Court

68 N.W. 200

9 S.D. 144

HULST et al. v. BENEVOLENT HALL ASS'N.

Supreme Court of South Dakota

July 29, 1896

Appeal from circuit court, Meade county; A. J. Plowman, Judge.

Action by George W. Hulst and another, co-partners as Hulst & Price against the Benevolent Hall Association. There was a judgment for defendant, and plaintiffs appeal. Affirmed.

James W. Fowler, for appellants. Ralph H. Kirk, for respondent.

HANEY J.

This action is upon a builder's contract. It was tried by a referee, who found for defendant. His report was accepted and defendant had judgment for costs. Plaintiffs appeal.

The report itself shows that it does not contain all the exceptions taken during the trial. In this it is defective. Laws 1891, c. 100, § 8. But the defect was waived. After the report was returned, plaintiffs filed exceptions to it, and moved to set it aside, without calling attention to the omissions. This should have been done, that the court might have required a corrected and complete return. Board of Sup'rs v. Ehlers, 45 Wis. 281. The objection was first suggested in plaintiffs' notice of intention to move for a new trial. It was properly disregarded, because it came too late, and because it did not affect any substantial right. Comp. Laws, 4941. The motion for a new trial was made and heard upon a bill of exceptions or statement of the case containing all the evidence before the referee and all the exceptions taken during the trial. The court refused a new trial upon a record containing all the proceedings before the referee. What possible benefit could plaintiffs have derived from having the history of such proceedings duplicated in the form of a report? There was no reversible error in this regard.

Plaintiffs offered in evidence a bid by certain parties to rebuild the east wall of the building in question. Defendant objected to the offer as irrelevant, incompetent, and immaterial. The fact sought to be established was the actual cost of labor and material required to take down the wall and replace it in the condition called for by the contract. The bid may or may not have represented such cost. It may or may not have been prepared by persons who knew the amount of material and labor required. It only tended to show what the bidders were willing to do the work for. It was not evidence of actual value. The amount of material and labor required was easily ascertainable.

The evidence was property excluded.

The contract was between one A. H. Smith and defendant. Plaintiffs are his assignees. It is the rule in this state that "when contractors have in good faith intended to and have substantially, complied with the contract, although there may be slight defects, caused by inadvertence or unintentional omissions, they may recover the contract price less the damage sustained on account of such defects." Aldrich v. Wilmarth, 3 S. D. 523, 54 N.W. 811. Whether there has been a substantial compliance is a question of fact. Glacius v. Black, 50 N.Y. 145; Phillip v. Gallant, 62 N.Y. 256; Wodworth v. Fuller, 80 N.Y. 312. The referee finds "that the building was not completed according to the plans and specifications and the terms of the contract, nor was there a substantial compliance with the terms and conditions of the contract by the contractor." The evidence is voluminous and conflicting. This court will presume the referee weighed the evidence correctly, and, unless satisfied there is a clear preponderance against his finding, it must be sustained. Randall v. Burk Tp., 4 S. D. 339, 57 N.W. 4; Webster v. White (S. D.) 66 N.W. 1145. It was provided in the contract that Smith should erect and finish in a good, substantial, and workmanlike manner, and in conformity with the plans, drafts, specifications, and explanations thereof, which were made a part of the contract a brick building on lots 13 and 14, in block 13, townsite of Sturgis, on or before February 1, 1893. Such building was to be made and finished out of good and substantial material, to be furnished by Smith, who was to provide all customary and necessary labor, and all necessaries of every description, for the due performance of such work; such work to be...