Karlinski v. P. R. & H. Lumber & Constr. Co.
| Decision Date | 10 November 1938 |
| Docket Number | No. 6501.,6501. |
| Citation | 281 N.W. 898,68 N.D. 522 |
| Court | North Dakota Supreme Court |
| Parties | KARLINSKI v. P. R. & H. LUMBER & CONSTRUCTION CO. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Partial payment accompanied by protests complaining of defects and continued occupancy after defective work was completed under conditions that made such occupancy necessary held not to constitute a waiver of breach of building contract.
2. Where it is shown that recovery of a judgment in another state was had against the owner on a building contract but it does not appear that the question of a breach of the contract was litigated in the former action, the owner is not estopped from maintaining an action to recover damages for breach of such contract on the ground that the judgment renders the owner's cause of action res adjudicata.
3. Substantial compliance with a building contract does not absolve the builder from responding in damages for his omissions and derelictions.
4. Where defects resulting in a breach of a building contract may be remedied without taking down and reconstructing a substantial portion of the building, the amount of damages which the owner may recover is the expense of making the work conform to the contract, but where such defects cannot be so remedied, the measure of damages is the difference between the value of the defective structure and what the value of the structure would have been if properly completed according to the contract.
5. Certain evidence concerning values admitted over the objection of the defendant is examined and it is held, for reasons stated in the opinion, that the admission of such evidence is erroneous and prejudicial to the defendant.
Appeal from District Court, Sioux County; Berry, Judge.
Action by Michael Karlinski against the P. R. & H. Lumber & Construction Company to recover for breach of a building contract. From a judgment in favor of the plaintiff, the defendant appeals.
Reversed and new trial ordered.
Jacobsen & Murray, of Mott, and Harry R. Wilmsen, of McIntosh, for appellant.
Hanley & Hanley, of Mandan, for respondent.
This is an appeal from a judgment for damages entered pursuant to the verdict of a jury, against the defendant for breach of a building contract. The evidence, when viewed in the light most favorable to the plaintiff in whose favor the verdict was rendered, discloses these facts: In April, 1930 the plaintiff and defendant entered into a contract for repairing and building an addition to a house and installing a furnace therein. The house was twenty by thirty feet, one and a half stories high. The interior of the first story was finished and the second story was unfinished. At the time the contract was entered into a Mr. Richards, representing the defendant, came out to the plaintiff's place and discussed with him the particulars of the work to be undertaken. They discussed the probable cost, and went over each item. The items covered by the conversation are as follows: Raising the house so that the bottom of the cellar window sills would be level with the top of the ground; plastering on metal lath over the old plaster; plastic painting of the interior; remodeling the upstairs using sheet rock and material to cover the nails so that they would not show; building on a small room upstairs as a dormer; laying a new floor upstairs. When completed, the job was to have two rooms and a dormer upstairs, and installation of water pipes to the dormer.
A few days later another conversation was had and the basement was discussed. It was agreed that the defendant would put in a cement wall six inches thick in the basement beside the stone wall that was already there. The house was to be raised as had been mentioned in the previous conversation, a distance of about eighteen inches. It was then agreed that a furnace was to be installed in the basement, the house having been previously heated by stoves. It was to be a pipe furnace guaranteed to heat the house. The maple floors downstairs were to be resurfaced. The floors in the dining room and the living room were to be scraped. It was also agreed that a ten by twenty foot addition was to be built with sheet rock on the walls, and new floors. The sheet rock was to be covered so that the joints and nails would not show. The addition was to contain two rooms and a stairway going to the basement. It was also agreed that a stairway would be constructed from the main floor to the second story by taking out an old stairway and building a new one in its place. Also the old basement stairway was to be taken out and a clothes closet to be built in its place. Richards then calculated the approximate cost and advised the plaintiff that it would cost between $1,100 and $1,200 and not more than $1,300. The work was commenced on April 7 and completed about May 13. The plaintiff continued to live in the house, but most of the time was busy working in his fields.
The plaintiff complains that the defendant cut two joists under the main floor in order to insert cold air registers for the furnace. No header was installed, resulting in the weakening of the floor over a space of about six feet. Another joist was cut in order to install a sewer pipe, and no support provided in its place. This occurred directly under a partition with the result that the house is sagging and the walls are cracking, there being no support beneath the partition. Another joist was cut under the partition wall in the living room where a warm air register was installed. Another joist cracked under the stairway causing the stairway to sag. Joists were also cut around the chimney which was installed by the defendant. A two by four was used as a header on one side of the chimney and on the other no header was put in at all. A clothes-chute is beside the chimney. The clothes-chute is sagging down and the plaster is cracked. The floors downstairs are not level. Some of the floor boards upstairs do not meet on the joists and there is a large crack between the floor and wall along the side of one room.
When the defendant attempted to jack up one corner of the house the cellar wall gave way and collapsed into the basement. The corner of the house sagged. The defendant afterward raised it approximately to its original position, but did not raise the house eighteen inches as had been provided for in the agreement. It was agreed that the basement wall was to be waterproof. The cement is full of holes and soft in spots, and permits water to run into the basement. The chimney is cracked on three sides. The air ducts for the furnace were covered with a layer of asbestos. The boards shrunk, cracking the asbestos paper cover and resulting in the impairment of the air circulation of the furnace. The nails and joints of the sheet rock were not covered. The joints in the sheet rock in the ceiling were filled with plaster, but the plaster fell out. There are four different cracks in the plaster about the chimney. The floors were not scraped. Some of the plaster has fallen out around the sewer pipe, the joint of which was not concealed in the wall. Plaster on the ceiling has cracked. Some of the steps on the stairway are loose and squeak. The defects complained of are disputed or minimized by the evidence of the defendant.
The plaintiff paid the defendant $900 on May 21, 1930, and at that time complained of some of the defects. After this action was commenced the defendant brought a garnishment action against the plaintiff in the state of Iowa and recovered the balance which the defendant claimed to be due on the contract. It is now contended that the payment of $900 constitutes a waiver of the defects and that the recovery by the plaintiff in the Iowa court renders the plaintiff's present cause of action res adjudicata.
[1] An owner may acquiesce in the builder's failure to perform a contract and by accepting and paying for the work may waive his claim for damages on account of defects. The partial payment made by the plaintiff does not constitute a waiver because he protested and continued to protest concerning the defects and refused to pay the balance. Under the facts in this case the plaintiff cannot be held to have waived his claim for damages by accepting the work because of the fact that he was compelled to use the defective work. He was living in the house at the time the work was done and of necessity continued to occupy it after the defective work was completed. Marchand v. Perrin, 19 N.D. 794, 124 N.W. 1112; Williston on Contracts, Revised Edition, section 724; 9 Am.Juris., Building and Construction Contracts, section 53. In Zambakian v. Leson, 77 Colo. 183, 234 P. 1065, the court discusses the acceptance of the work as a waiver of defective performance, and says (page 1066):
[2] Defendant's contention that the matter in litigation is res adjudicata cannot be sustained. Res adjudicata was not pleaded as a defense. Neither the record nor the judgment entered in the Iowa court was presented in evidence in this action. It does not appear that the plaintiff interposed a counter-claim in the Iowa suit, or in any way presented to the court the question of damages arising from the alleged breach of contract. The judgment of the Iowa court operates as an estoppel only as to those matters or questions therein litigated and determined. 15 R.C.L. 972; 34 C.J. 863; Coyle v. Due, 28 N.D. 400, ...
To continue reading
Request your trial