Knutson v. Lasher
| Citation | 219 Minn. 594,18 N.W.2d 688 |
| Decision Date | 04 May 1945 |
| Docket Number | No. 33930.,33930. |
| Parties | KNUTSON v. LASHER et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; Frank E. Reed, Judge.
Action by John A. Knutson, sole proprietor, doing business as Knutson Construction Company, against Floyd E. Lasher and another, individually and as copartners doing business as Lasher Carpet & Linoleum Company, and another, to foreclose a mechanic's lien and to recover expenses of an abortive arbitration proceeding. The District Court awarded a mechanic's lien for less than the amount claimed and ordered foreclosure, and plaintiff appeals.
Modified so as to allow interest.
O. A. Brecke and E. T. Chesnut, both of Minneapolis, for appellant.
Best, Flanagan, Rogers, Lewis & Simonet, of Minneapolis, for respondents.
This appeal involves disputed questions between defendants as the owners of certain land and plaintiff as a building contractor who erected a building thereon under contract with them. The action was brought by the contractor on two causes of action: (1) One to foreclose a mechanic's lien for $10,981.71, the balance claimed to be due on the contract and for extras; and (2) the other to recover $700 claimed as expenses incurred by him in connection with an abortive arbitration proceeding from which the owners withdrew. No point is raised that there was a misjoinder of causes of action (see, 40 C.J., Mechanics' Liens, § 574, p. 419), or that the amount recoverable on the second cause of action mentioned is not lienable. The questions raised here concern the right of defendants to deduct from the balance due plaintiff the amount that would compensate them for defects in the job caused by plaintiff's faulty performance, the sufficiency of the evidence to show such defects, and the liability of defendants for interest on the amount found to be due plaintiff.
Plaintiff contracted with defendants to erect for the contract price of $83,585 a warehouse and office building according to plans and specifications. These, so far as here material, provided for a one-story building 149 feet by 280 feet in size, with concrete slab floors and roof and brick walls. One of the first-floor slabs rested upon the ground. The other was over a basement 149 feet by 100 feet. The latter was to be eight and one-half inches thick. The specifications provided: (1) That the topping of the floors should be screeded to "a true and even surface," floated "to close all voids and hollows"; that they should be steel-trowelled so as to be "free from depressions and trowel marks," and that the ramps and sidewalks should be wood-trowelled so as to be "free from depressions"; (2) that the roof slab should be screeded and top surface should be "level" and "free from depressions"; that the "roof slab shall be pitched to elevations shown and leader heads shall be depressed into slab to prevent water pockets standing on roof surfaces"; and "concrete slab shall be depressed in area approximately four feet square 2 to permit good drainage around leader heads"; that the roof slab should be covered with felt and pitch roofing material; and (3) that the floor slabs in the basement "shall be sloped to floor drains where drains occur."
The building was intended, as the contractor well knew, to be used by defendants in operating a wholesale linoleum and carpet business. It was important to them to have it erected according to the plans and specifications in order to serve its intended purpose.
Defendants claimed that in numerous respects plaintiff had caused defects in the building by faulty construction. They claimed that the floors were uneven and had depressions in them. There was evidence to show that there were seven or eight depressions in the showroom caused by planks two inches thick and eight inches wide. In the cutting room, there were additional plank depressions, and the floor was so uneven in places that rolls of linoleum could not be stood on end without danger of their falling. There was considerable cracking and pitting all over the suspended slab. Plaintiff attempted to remove some of the uneven places by grinding the floor surface level with a carborundum machine. In some places the floor was ground down to the coarse aggregate below, with the result that when the floor was used there was considerable dusting. There were over 80 places where workmen had chipped the floor in removing the scaffolding and forms.
The roof did not drain, because of a large depression in the roof slab. Water stood in the depression, which plaintiff testified was 32 by 81 feet and which according to defendants' evidence was 50 by 100 feet in area and two and one-half inches in depth. Defendants claimed that in order to make the job comply with the specifications it was necessary to remove several squares of the roof and to put on a new cover over the part rebuilt. Plaintiff claimed that the water was beneficial to the roof, but that it could be made to drain by applying two or three layers of felt and pitch.
The boiler-room floor, instead of having a pitch that would cause it to drain toward the drain opening, had a slope which caused the water to stand in front of the boiler. Plaintiff claimed that the defect, if any, could be removed by cutting out a part of the surface of the floor between the boiler and the drain openings. Defendants contended that the only way to make the job workmanlike was to take out the entire floor and put in a new one with proper pitch.
There were other defects in the installation of doors, the front entrance, and windows, amounting to $132. No point is made concerning the allowance of this item.
The trial court found that the floor slabs were so faultily constructed that the defects were irremediable and that defendants should be allowed the sum of $2,700 as the difference between the value of the building as it would have been if plaintiff's work had been according to the contract and its value as actually constructed; that defendants were entitled to $532 as the reasonable cost of reconstructing and repairing the defective parts of the roof; $200 for the reasonable cost of reconstructing the boiler-room floor, and $132 for the undisputed items mentioned. The court held that plaintiff was entitled to recover $83,585, the contract price, and the following items: $1,750.51 for extras; $400 for attorney's fees; $194.75 for disbursements; $167.80 for attorney's fees and disbursements in connection with the abortive arbitration, making a total of $86,098.06; that defendants were entitled to credit for the progress payments, amounting to $74,391.30, and to deductions for defective construction as follows: $2,700 for concrete slab; $532 for roof; $200 for boiler-room floor; $132 for cost of other repairs, making a total of $77,955.30; and that the balance due plaintiff was $8,142.76, for which he was awarded a mechanic's lien, which was ordered foreclosed in the manner provided by law.
No interest was allowed on the balance found to be due plaintiff, for the reason given by the trial court "that the building contract * * * expressly provides that final payment thereunder shall not be due until thirty (30) days after completion of the contract in accordance with the terms thereof, and until the architects employed shall have certified to the propriety of such payment."
The general conditions of the contract provided that the owners should be liable for payments upon certification by the architect that plaintiff had duly performed the contract; that the architect should have general supervision and direction of the work; that in the first instance he should be the interpreter of the conditions of the contract and the judge of its performance; and that in case of dispute the architect's decisions should be subject to arbitration. The contract further provided that final payment should be due 30 days after full and complete performance of the contract and certification by the architect to that effect.
The architect refused to issue a certificate of final performance. The contractor claimed that there was then due him the sum of $10,981.71. Upon the architect's refusal to issue the certificate mentioned, plaintiff demanded arbitration under the contract. The general conditions, made a part of the contract, provide for the arbitration of disputes "at the choice of either party," and that the arbitrators' decision shall be a condition precedent to any right of legal action. A board of arbitrators was selected by the parties in the manner provided by the contract. On December 14, 1942, the arbitrators convened. The parties and their counsel appeared. In order to enable the arbitrators to view the premises, the hearing was adjourned with the consent of the parties to December 16, 1942. At the opening of the adjourned meeting, after plaintiff was sworn to testify in his behalf, defendants served notice in writing upon the arbitrators and plaintiff that they had revoked the agreement for a submission to arbitration and that they refused to proceed further thereunder. Thereupon defendants withdrew from the arbitration, and no further proceedings thereunder were had. Two days afterward, on December 18, 1942, plaintiff commenced this action to foreclose the mechanic's lien claimed by him, for which he had filed a lien statement on December 1, 1942.
The questions raised here are: (1) Whether the defendants' refusal to proceed with the arbitration barred them from asserting any claim to deductions for faulty performance of the contract by plaintiff; (2) whether the evidence sustains the finding that there were defects due to faulty performance of the contract by plaintiff; and (3) whether plaintiff should have been awarded interest upon the unpaid balance due him.
1. Plaintiff's contention that defendants are not entitled to set off against the amount due him the amount of damages sustained by them as a...
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