Marchand v. Perrin
| Decision Date | 03 February 1910 |
| Citation | 124 N.W. 1112,19 N.D. 794 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Bottineau county; Templeton, J.
Action by W. L. Marchand against F. X. A. Perrin. Judgment for defendant, and plaintiff appeals.
Affirmed.
A Besancon, for appellant.
Where one executes work according to contract, and the request of the other contracting party, it is sufficient. 30 Am. & Eng Ency. Law 1236.
Substantial performance sufficient. 301 Am. & Eng. Ency. 1221; Hahn v. Bonacum, 107 N.W. 1001; Leeds v. Little, 42 Minn. 414, 44 N.W. 309, 80 N.Y. 312; 81 N.Y. 211; Crouch et al. v. Gutmann, 31 N.E. 271; 30 Am. St. Rep. 608.
Where extra work is necessary by owner's mistake, contractors can have both compensation and lien. 30 Am. & Eng. Enc. Law 1283; 51 Ill. 422; 93 Mass. 152.
Weeks Murphy & Moum, for respondent.
Part payment of purchase price, and use and occupancy of building do not waive completion of contract. 6 Cyc. 54, note 52; 6 Cyc. 67 to 69 and note 28; Anderson v. Todd, 8 N.D 158, 77 N.W. 599; Baders v. Davis, 88 Ala. 367, 6 So. 834; Morrison v. Cummings, 26 Vt. 486; Eaton v. Gladwell, 66 N.W. 598.
Full and substantial performance of contract essential to recovery or benefit of lien. 9 Cyc. 759; U. S. v. Robeson, 9 Pet. 319; 9 L.Ed. 142; Hitchcock v. Davis, 49 N.W. 912; Anderson v. Todd, supra.
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.
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 $ 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 specific 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 issue 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 asks 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 findings 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 inferior material." That such finding has ample support in and is fully justified by the testimony we are fully agreed.
Plaintiff himself testified as follows: It is true plaintiff stated that he considered the structure a good building the way it stands.
The witness Sholl, a general contractor and builder of 12 or 13 years' experience, testified that he examined the building in June, 1907, and again just before the trial, and gave it as his opinion that the material was poor. Witness by using the end of his rule dug into the wall and took out certain chunks of the cement which were introduced in evidence. Said he had no difficulty in making a hole with the end of the rule to take out these pieces, and said it was an easy matter to dig a hole through the wall with such rule. He says the wall was poor and the material therein would easily crumble; that "by taking it between your fingers you could pulverize it." In speaking of the bulges in the walls, the witness stated: He says the wall was cracked in one place about 70 feet or so, and such crack went entirely through the wall. He also testified to other numerous cracks and imperfections in the walls of the building.
The witness Higgins, a contractor and builder and familiar with cement and concrete...
To continue reading
Request your trial