Marchand v. Perrin

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtFISK
Citation19 N.D. 794,124 N.W. 1112
Decision Date03 February 1910
PartiesMARCHAND v. PERRIN.

19 N.D. 794
124 N.W. 1112

MARCHAND
v.
PERRIN.

Supreme Court of North Dakota.

Feb. 3, 1910.



Syllabus by the Court.

In an action by a contractor to foreclose a mechanic's lien for a balance claimed to be due under an express contract, the answer puts in issue the allegation of the complaint to the effect that plaintiff had substantially performed the contract, and also pleads four alleged counterclaims. At the trial plaintiff's counsel moved to strike out certain of such counterclaims and certain portions of others. The trial court granted such motion in part and denied the remainder.

Held, for reasons stated in the opinion, that such rulings were nonprejudicial.

The finding of the trial court that the building erected by plaintiff for defendant under the contract was not built and completed in a good, substantial, and workmanlike manner, but was built and erected in a careless, negligent, unskillful, and unworkmanlike manner of inferior material, held amply supported by the testimony.

Plaintiff, having failed to prove a substantial performance of the contract on his part, cannot recover anything under the contract where defendant is not shown to have waived such performance.

Evidence examined, and held insufficient to show such waiver.

The mere fact of making certain payments and taking possession of and occupying the building does not of itself amount to such waiver or estop defendant from urging nonperformance of the contract on plaintiff's part.



Additional Syllabus by Editorial Staff.

In a mechanic's lien foreclosure proceeding, the refusal of a conclusion of law “that defendant was not indebted to the plaintiff in any sum whatever,” and the finding of a proposed conclusion “that the plaintiff is not entitled to a lien against the property described herein,” were not inconsistent; the intent being to hold that there was nothing due plaintiff under the contract, leaving open for future consideration the question of defendant's liability in an action on the quantum meruit, should such an action be brought.


Appeal from District Court, Bottineau County; Templeton, Judge.

Action by W. L. Marchand against F. X. A. Perrin. Judgment for defendant, and plaintiff appeals. Affirmed.

[124 N.W. 1112]

A. Besancon, for appellant. Weeks, Murphy & Moun, for respondent.


FISK, J.

This is an action primarily for the foreclosure of a mechanic's lien, and appellant desires a review of the entire case in this court.

[124 N.W. 1113]

The complaint is in the usual form, alleging, among other things, that on April 13, 1906, the parties entered into a written contract, by the terms of which plaintiff agreed to construct for defendant at Willow City a certain concrete building for the consideration of $4,550. It is also alleged that, pursuant thereto, plaintiff constructed such building, and in the construction thereof he furnished, at defendant's special instance and request, certain extras on account of changes and alterations in the original plans and specifications, which extras were reasonably worth $669.37, and which sum defendant promised to pay. After deducting credits for payments made, plaintiff claims a balance due him under such contract of $3,302.68, for which a lien is claimed and a foreclosure thereof prayed for. The complaint also alleges that as part payment under the contract defendant agreed to convey to plaintiff certain real property therein described at an agreed valuation of $2,050, and a specific performance of this portion of the contract is also prayed for. The gist of the defense, as stated in the answer, is that plaintiff failed to construct such building in a good and workmanlike manner, and has not completed the same in several specified particulars. In brief, the defense alleged is a failure on plaintiff's part to substantially perform the contract, the answer alleging, in detail, many material imperfections in the structure and deviations by plaintiff from the contract. In addition to the defensive matter, the answer contains four alleged counterclaims, but which we need not notice except as we are required so to do in passing upon certain rulings of the trial court on motions of plaintiff to strike out such counterclaims or portions thereof. In view of the fact that the trial court merely tried the equitable issues raised by the pleadings, expressly reserving, with the implied consent of counsel, the legal issues for future trial, and as a consequence we are called upon by this appeal merely to review and determine such equitable issues, we need not consider such rulings only to the extent that they affect the equitable issues aforesaid. Such alleged counterclaims contain much evidentiary matters, both of a defensive and affirmative nature, which no doubt are improperly pleaded, but we discover no prejudicial error in the rulings complained of. Appellant could not have been prejudiced by a refusal to strike out the allegations of a defensive character, which he asked to have stricken out, as such allegations, so far as competent, material, and relevant to the issues tried, could all have been proved under other portions of the answer.

Turning our attention to the merits, we are confronted with a great mass of testimony covering 728 pages of the printed abstract. A detailed review of such testimony in this opinion is manifestly both impracticable and useless, and we shall not attempt it. We shall merely in a general way refer to such testimony, giving our conclusions as to ultimate and controlling facts which we deem established, and apply thereto well-settled rules of law. The contract required plaintiff to construct such building in a good, substantial, and workmanlike manner of certain designated dimensions and materials. The learned trial court found, and we think such finding in accordance with the clear preponderance of the testimony, that the building “was not built and completed in a good, substantial, and workmanlike manner, but that said building was erected in a careless, negligent, unskillful, and unworkmanlike manner of...

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8 practice notes
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...Shies, 161 Ind. 500; Hahl v. Deutsch, 94 S.W. 443; Halleck v. Bresnahen, 3 Wyo. 73; Land Co. v. Brewer, 51 So. 559; Marchland v. Perrin, 124 N.W. 1112; Church v. Cement Co., 66 Md. 598.) The finding that the sidewalk had not been condemned by the city engineer is against the evidence, the c......
  • Horton v. Emerson
    • United States
    • United States State Supreme Court of North Dakota
    • May 4, 1915
    ...to cite more than a few of the authorities recognizing such exception. Anderson v. Todd, 8 N. D. 158, 77 N. W. 599;Marchand v. Perrin, 19 N. D. 794, 124 N. W. 1112;Sheldon v. Leahy, 111 Mich. 29, 69 N. W. 76;Columbus Safe Deposit Co. v. Burke, 88 Fed. 630, 32 C. C. A. 67;Scholz v. Schneck's......
  • Karlinski v. P. R. & H. Lumber & Constr. Co., No. 6501.
    • United States
    • United States State Supreme Court of North Dakota
    • November 10, 1938
    ...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 Zambakia......
  • Fargo Glass & Paint Co. v. Smith, No. 6350.
    • United States
    • United States State Supreme Court of North Dakota
    • March 18, 1936
    ...Hunter v. Todd, 8 N.D. 158, 77 N.W. 599; O. A. Braseth & Co. v. State Bank of Edinburg, 12 N.D. 486, 98 N.W. 79;Marchand v. Perrin, 19 N.D. 794, 124 N.W. 1112. The rule is discussed in Kasbo Const. Co. v. Minto School District, 48 N.D. 423, 429, 184 N.W. 1029. See, also, Dinnie v. Lakot......
  • Request a trial to view additional results
8 cases
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...Shies, 161 Ind. 500; Hahl v. Deutsch, 94 S.W. 443; Halleck v. Bresnahen, 3 Wyo. 73; Land Co. v. Brewer, 51 So. 559; Marchland v. Perrin, 124 N.W. 1112; Church v. Cement Co., 66 Md. 598.) The finding that the sidewalk had not been condemned by the city engineer is against the evidence, the c......
  • Horton v. Emerson
    • United States
    • United States State Supreme Court of North Dakota
    • May 4, 1915
    ...to cite more than a few of the authorities recognizing such exception. Anderson v. Todd, 8 N. D. 158, 77 N. W. 599;Marchand v. Perrin, 19 N. D. 794, 124 N. W. 1112;Sheldon v. Leahy, 111 Mich. 29, 69 N. W. 76;Columbus Safe Deposit Co. v. Burke, 88 Fed. 630, 32 C. C. A. 67;Scholz v. Schneck's......
  • Karlinski v. P. R. & H. Lumber & Constr. Co., No. 6501.
    • United States
    • United States State Supreme Court of North Dakota
    • November 10, 1938
    ...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 Zambakia......
  • Fargo Glass & Paint Co. v. Smith, No. 6350.
    • United States
    • United States State Supreme Court of North Dakota
    • March 18, 1936
    ...Hunter v. Todd, 8 N.D. 158, 77 N.W. 599; O. A. Braseth & Co. v. State Bank of Edinburg, 12 N.D. 486, 98 N.W. 79;Marchand v. Perrin, 19 N.D. 794, 124 N.W. 1112. The rule is discussed in Kasbo Const. Co. v. Minto School District, 48 N.D. 423, 429, 184 N.W. 1029. See, also, Dinnie v. Lakot......
  • Request a trial to view additional results

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