Krohnke v. Lemer, 9795

• Decision Date: 19 December 1980
• Docket Number: No. 9795,9795
• Citation: 300 N.W.2d 246
• Parties: Everett KROHNKE, d/b/a Serve & Save Lumber, Plaintiff and Appellant, v. George LEMER, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 246

300 N.W.2d 246

Everett KROHNKE, d/b/a Serve & Save Lumber, Plaintiff and Appellant, v. George LEMER, Defendant and Appellee.

Civ. No. 9795.

Supreme Court of North Dakota.

Dec. 19, 1980.

Joseph Dietchman, Minnewaukan, for plaintiff and appellant.

McIntee Law Firm, Towner, for defendant and appellee; argued by Joseph C. McIntee, Towner.

ERICKSTAD, Chief Justice.

Because the trial judge died after the trial of this case, but before he was able to render a decision, this case is somewhat unique. Judge Ray R. Friederich tried this case without a jury on May 6 and 7 of 1979 in the Pierce County Courthouse at Rugby, North Dakota. At the close of the trial, he asked counsel for each side to prepare proposed findings of fact, conclusions of law and order for judgment and submit the same to him for his consideration. Before he could render a decision, Judge Friederich came to an untimely death. This court appointed Harold L. Anderson as a temporary judge and Douglas B. Heen as the Presiding Judge of the Northeast Judicial District assigned this case to Judge Anderson. Through counsel, the parties stipulated that Judge Anderson should decide the case on the transcript of the proceedings before Judge Friederich.

Initially, Everett Krohnke, doing business as Serve and Save Lumber, sued George Lemer to recover $3,183.92 as a balance due on the purchase price of a pole barn which was constructed by Krohnke for Lemer on his ranch near Drake, North Dakota. The complaint is dated the 18th of August, 1975, and is signed by Robert A. Butz as the attorney for Krohnke. Lemer filed an answer and a counterclaim, the essence of which is that the parties agreed that Krohnke should build for Lemer a pole barn on Lemer's premises, 40 feet by 120 feet for the total sum of $6,780, and that $3,600 had been paid on the contract, leaving $3,183.92, the balance to be paid when the building was completed to Lemer's satisfaction. He further alleged that he had informed Krohnke that the building was not properly constructed; that Krohnke agreed to make necessary repairs to the satisfaction of Lemer, but that on the 7th of February, 1975, a large section of the roof collapsed, completely ruining the building; that Krohnke again agreed to make necessary repairs to the satisfaction of Lemer, but that he had not done so; that Lemer was willing to pay the balance due on the contract as soon as Krohnke completed the building to Lemer's satisfaction, that if he did not do so, it would cost Lemer $5,000 to reconstruct it.

Judge Anderson rendered a memorandum decision on the 9th day of November, 1979, wherein he held that Krohnke's complaint should be dismissed and that Lemer should recover $5,000 on his counterclaim with no interest, his costs and disbursements. Krohnke appeals from the judgment which was entered upon the findings of fact, conclusions of law and order for judgment executed subsequent to the memorandum decision.

As Judge Anderson did not see and hear the witnesses testify, but rendered his decision on the basis of the transcript, we do not apply Rule 52(a) of the North Dakota Rules of Civil Procedure in this case. See Dolajak v. State Auto. & Cas. Underwriters, 252 N.W.2d 180 (N.D.1977). Accordingly, we have reviewed the entire transcript in an attempt to determine the facts and have concluded that the judgment rendered upon Judge Anderson's findings of fact, conclusions of law and order for judgment and his memorandum decision should be and is affirmed.

Notwithstanding that we have reached our determination of this case from an independent examination of the transcript and exhibits, we believe it is significant that Judge Anderson concluded that Krohnke was liable, both under his oral warranty of fitness and for improper construction. ¹

The record shows that Krohnke testified that George Lemer wanted to use 2 by 6 lumber for the rafters and 2 by 6 lumber for the trusses, but that Krohnke told Lemer that "it didn't need it." In the building of the pole barn, Krohnke used 2 by 4 lumber for the lower part of the trusses.

Relative to the issue of warranty, the record shows that Krohnke testified that he assured George Lemer that the pole barn would stand a long time but that he did not assure him that it would stand against a 70-mile-an-hour wind and two feet of snow. Notwithstanding that assertion, Krohnke did concede that he told Geoge Lemer that the building would stand until Lemer's three-year-old son was able to take over the farm.

As for the construction of the rafters, the record discloses that Krohnke testified that Adam Lemer, a brother of George Lemer, told Krohnke that the rafters were sagging and that this conversation occurred prior to the collapse of the building on the 7th day of February, 1975. Krohnke's testimony as to his own response to Adam's statement was that, "he was out of his tree."

There is considerable testimony relative to the construction of the rafters. Krohnke testified that three rafters broke after they pulled apart which, he conceded, would indicate, possibly, that they were not glued too well. The building contained 31 rafters, including the two end rafters. Apparently the end rafters could not be glued together, but of the 29 at least three, if not five, of the rafters were glued at a time different from the other rafters. At one point in his testimony, Krohnke testified that he built all of the rafters in the Drake School Ag room. At another point in his testimony, he asserted that he built the five rafters in his office at the lumber yard and said that he did not remember saying that he had built them in the school.

The issue is important because gluing, to be effective, must be done at a temperature of something like 50 o Fahrenheit and, thus, if it were done outside in the subzero temperature, the gluing would not hold. George Lemer contended that Krohnke's shop was so filled with supplies and so small that it would be impossible to construct the rafters inside of the shop. Kenneth Richter, a neighbor, said that Krohnke came out to his farm and borrowed a heater in January of 1974 "to glue rafters for George's barn." Krohnke denied that he ever used Richter's heater for such a purpose.

Krohnke's testimony was to the effect that George Lemer had not paid the balance on the barn at the time the roof caved in in February of 1975, although the barn was substantially completed in April of 1974, for the reason assertedly given by Lemer that Lemer had no money to pay the balance.

George Lemer, on the other hand, contended that the reason he hadn't paid the balance of the purchase price of the pole barn was that he was dissatisfied with a number of things including the sagging rafters, that the building was not square, that the doors were improperly constructed, and that the overhang varied from 131/2 inches on the west end of the front of the building, to 161/2 inches on the east half of the front of the building.

Krohnke testified that he guessed the level of the snow to be 22 inches deep on the 7th of February, 1975, when the roof collapsed, but that he did not measure it. As to the gluing, he further testified that the five rafters in question were supposed to be glued although he did not check them, but, in any case, whether glued or not, they would have broken from the pressure.

George Lemer testified that he agreed to the use of 2 by 6 top cord truss rafters and 2 by 4 bottom cord rafters because Krohnke said it would "stand for my lifetime."

Krohnke apparently commenced the construction of the pole barn in December of 1973 and completed it, such as it was, in April of 1974.

George Lemer testified that he told Krohnke he would pay him the balance of the purchase price when he completed the job and that he never told Krohnke that he didn't have any money.

In George Lemer's view, the snow on the roof on the day of the collapse of the roof on February 7, 1975, was 10 inches in the valley and two and a half inches over an area of the roof about 18 by 14 feet. His analysis of the damage to the building on February 7, was that one rafter broke and 11 other rafters pulled apart. He testified that 16 rafters were brought out to the ranch at one time and 13 at another time. He contended that Krohnke told him that the 13 were going to be built in the Vo Ag Building of the Drake School during Christmas and that Krohnke said he had built the others in the same place. When Krohnke didn't use the school over Christmas, Lemer testified that Krohnke told him that he was going to build the other rafters in his warehouse and that he had to wait for warm weather. According to George Lemer, there wasn't enough room in the office to build a 40-foot-span rafter. He contended that Krohnke constructed the rafters in temperatures that were 20 o below zero. George Lemer said Krohnke used Kenny Richter's heater which is a space heater which puts out 95,000 B.T.U.'s and that that is not enough for gluing, as the glue required temperatures of 50 o for a period of five or six hours.

Perhaps the most crucial testimony in this case is that of Doug Loos, a consulting engineer from Bismarck with a degree in civil engineering. Mr. Loos examined the George Lemer pole barn on March 4, 1975, at the request of Mr. William Cresap, an insurance adjuster for the company which insured the building against a number of losses, but not against the loss due to a collapsing of the roof. He concluded, after an examination of the barn, that the collapse was due to the failure of a connection between a certain beam and a certain post in the barn. His testimony was as follows:

"A ... The connection of that beam, if you will, to the post was inadequate to carry the load that was on it. That was where the failure started and that failure at that particular connection caused a portion of the roof to collapse. The collapse threw additional load on to the remaining roof which set up sort of a chain reaction until the...