Klimpel v. Hayko

• Decision Date: 26 March 1921
• Citation: 182 N.W. 535,47 N.D. 416
• Court: North Dakota Supreme Court

182 N.W. 535

47 N.D. 416

ADOLPH KLIMPEL, Respondent, v. JOHN HAYKO, Appellant

Supreme Court of North Dakota

March 26, 1921

From a judgment of the District Court of Ward County, Leighton, J defendant appeals.

Affirmed.

F. B Lambert, for appellant.

"One who relies upon an express contract, must prove a substantial compliance with the contract before he can recover at all." Ball v. Dolan (S.D.) 101 N.W. 719.

Where defects pervade the whole building, the contractor cannot recover on the theory that he has substantially complied with the contract. Braseth v. First State Bank, 12 N.D 486, 98 N.W. 79.

The work must be beneficial before it can be held that a contract has been substantially performed. 9 Cyc. 602.

One cannot sue on a contract and recover in that action on a quantum meruit. Werre v. N.W. T. Co. (S.D.) 131 N.W 721.

John J. Coyle, for respondent.

Where the contract is substantially performed, the party may recover as for a complete performance, less such damages as the other party may have been put to by reason of the matters not performed. 13 C. J. 691; Columbian Lyceum Bureau v. Sherman, 19 N.D. 58; Omaha v. City, 158 F. 922; Omaha Water Co. v. Omaha, 156 F. 926; 13 C. J. 691 note (a); St. Charles v. Stocky, 154 F. 772.

CHRISTIANSON, J. ROBINSON, Ch. J., and BIRDZELL, J., concur, GRACE and BRONSON, JJ., concur in the result.

OPINION

CHRISTIANSON, J.

The plaintiff instituted this action to recover $ 541.75 and interest from September 16, 1919, which he alleges is due to him for threshing defendant's grain in the fall of 1919; and also to foreclose a thresher's lien filed by the plaintiff. The complaint alleges that the defendant is the owner of certain real property situated in Ward county in this state, and that he farmed the same in the year 1919; that during that year the defendant employed the plaintiff as the owner of a threshing machine to thresh the 1919 crop on said premises for the agreed price of $ 25 per hour; that the plaintiff threshed said crops under said contract, being engaged therein for a period of twenty-one and three quarters hours; that the value of such services is the sum of $ 543.75, of which only $ 2 has been paid; that there is due and owing to the plaintiff the sum of $ 541.75, with interest thereon from September 16, 1919; that on September 29, 1919, the plaintiff executed and caused to be filed with the register of deeds of Ward county a certain thresher's lien, a copy of which is attached to and made a part of the complaint; that no action or proceeding at law or in equity has been had for the collection or enforcement of said lien.

The first paragraph of the answer interposed by the defendant denies "each and every allegation, matter, and thing in said complaint contained, save and except as thereinafter admitted, qualified, or explained." The next two paragraphs admit that the defendant "is the owner and in possession of the premises described in the plaintiff's complaint, and that he farmed the said land during the season of 1919;" and "that in the year of 1919, the defendant employed the plaintiff to thresh the 1919 crop on the said premises for him at the agreed price of $ 25 per hour, and that the plaintiff threshed the said crops for this defendant and was engaged therein for the period of twenty-one and three quarters hours." The answer denies that the services were of the value stated in the complaint. The answer further avers, as an affirmative defense and by way of counterclaim, that the threshing was performed under an agreement by the terms of which it was provided that the plaintiff should do a good job of threshing, and thresh the grain in such manner that none of it would go into the straw pile; that the plaintiff failed to comply with this agreement, and did in fact thresh the grain in such careless manner that a large amount of grain went into the straw pile to the damage of the defendant in the sum of $ 700. The plaintiff interposed a reply denying all the new matter set forth in the answer. The cause was tried upon the issues framed by these pleadings. The trial was to the court, without a jury. The trial court made findings in favor of the plaintiff upon all the issues, and judgment was rendered in his favor for the sum demanded in the complaint and costs, and for the foreclosure of his lien. Defendant has appealed from the judgment, and demands a trial anew in this court.

There is a direct conflict in the evidence as to whether the plaintiff did or did not do a good job of threshing. There is evidence that the grain was injured by rust; that a considerable portion of the Marquis wheat was lying on the ground, the shocks having been thrown down and the bundles trampled upon by the defendant's cattle, and that as a result the bundles were wet and in bad condition for threshing. There is also evidence that the threshing was interrupted or delayed on account of rain, and that it was resumed before the grain was in good condition for threshing, because defendant insisted upon it. There is also evidence (and this evidence is not contradicted) that, very shortly before this threshing was done, the plaintiff put in a complete set of new teeth in the cylinder of the separator; and that in performing this threshing the machine was equipped and operated in such manner that it would knock the grain out of the heads if there was any possible way to do it. The defendant testified that during the course of the threshing he called plaintiff's attention to the fact that a great deal of grain was going into the straw, and that during such conversation the plaintiff stated that if the defendant would permit him to go on and complete the threshing that he would come back later and thresh the straw pile over again. The plaintiff denied that any such conversation took place, or that he made any such promise. The evidence further shows that the defendant sent a check for $ 300 to the plaintiff, which he offered as payment in full of the threshing bill; but that the plaintiff refused to accept the same and returned it to the defendant. The defendant testified that he took three loads of straw from the various straw piles and caused it to be threshed over again, and it is contended that the grain realized upon threshing such straw should be taken as a basis for computing the amount of grain contained in the various straw piles.

In rendering his decision the trial court filed the following written statement or memorandum decision: "There is no question as to the agreement of $ 25 per hour; that is admitted on both sides. The whole issue is as to the defense set up by the defendant, that threshing was improperly done and that consequently there was no substantial performance of the contract. I think there is no question but what part of this grain was down at the time the threshing was done, and that a portion of it at least was in poor condition to be threshed at that time, and under the conditions existing at that time it was impossible to perform the best possible work. I am also of the opinion that these facts were communicated to the defendant, and that he advised the threshers to go ahead with the work and complete the job.

"There is evidence undisputed that some of this straw was rethreshed, and there was procured 4 1/2 bushels of durum wheat, 4 bushels of marquis wheat, and 4 bushels of oats out of the straw so threshed, that is, for each load that was threshed, there being only three loads threshed.

"The evidence is somewhat conflicting as to where this straw was taken from the stack, but it is not at all probable that defendant took the straw from any place except where he anticipated he would find grain, and it is difficult to conceive that you would find this grain in all portions of the stack, considering the nature of the crops on a general average in that vicinity and the yield per acre shown by both parties as to the grain threshed on the land, so it seems to me that it is reasonable to conclude that this grain was taken from either beneath or near the blower.

"There is no manner or method of anyone saying as to how much grain there was left in the stack, and to conclude that the balance of the straw would average the amount as the loads threshed would be purely guesswork, as no one can say how much these stacks can thresh, nor is there any evidence as to the number of loads in the stack which is definitely certain, and I am unable to see how any damages could be allowed defendant on the proof submitted.

"I am also of the opinion that under the conditions the testimony shows the grain to be in at the time of the threshing, that there is not sufficient evidence to warrant any conclusion except that the contract was substantially performed, or that there was any more grain went through the machine than ordinarily occurs in threshing under similar conditions."

The conclusions of the trial court were not based upon the cold paper record of the testimony, but upon the words as they fell from the lips of the parties and witnesses. There were inclusive of the parties, seven witnesses who testified in favor of the plaintiff and six witnesses who testified in favor of the defendant. The trial court, who not only heard the testimony, but saw the witnesses and observed their demeanor while testifying, manifestly, was in a far better position to pass upon the credibility of the witnesses than are the members of this court. While, it is true, the statute says that this court shall try the case anew, that does not mean that we must wholly disregard the views of the trial...