Marchant v. Mcdonald.

Decision Date23 January 1933
Docket NumberNo. 3670.,3670.
CourtNew Mexico Supreme Court


Syllabus by the Court.

Where plans for construction of building were ambiguous as to floor plan, submitting question to jury for their interpretation held proper.

Where, without direction of its attention to any claimed error, court instructed jury touching issues submitted, such instructions held “law of case.”

Error, if any, in refusing to permit owner, sued by contractor, to dismiss, without prejudice, counterclaim for damages resulting from encroachment of building on street, held harmless, where jury found owner was not damaged.

1. Where plans for a building are ambiguous as to their true meaning on a certain point relating to the construction of the floor plan of said building, the court rightfully submitted to the jury their proper interpretation.

2. If, without objection or the direction of its attention to any claimed error, the court instructs the jury touching the issues submitted for their determination, such instructions become “the law of the case,” and are controlling upon the rights of the parties.

3. The error, if any, in the court's refusal to sustain defendant's motion, made at the close of the case, to dismiss the complaint without prejudice to plaintiff's right to bring a new action or to defendant's right to recoup therein his damages by way of set-off or counterclaim, is rendered harmless by the jury's finding in the case on trial that defendant is not damaged in the respect claimed.

Appeal from District Court, Bernalillo County; Helmick, Judge.

Action by E. J. Marchant against Dennis F. McDonald. Judgment for plaintiff, and defendant appeals.


Where plans for construction of building were ambiguous as to floor plan, submitting question to jury for their interpretation held proper.

Merritt C. Mechem, of Albuquerque, for appellant.

George C. Taylor, of Albuquerque, for appellee.

SADLER, Justice.

Plaintiff sued to recover a balance of $4,107.69, claimed due him under a building contract for the construction of a garage building and auto sales room in the city of Albuquerque. He alleged performance in accordance with the terms of the contract, copy of which was pleaded. The contract provided that it, together with the specifications and drawings, should form the contract. Defendant answered, pleading a copy of the specifications, and denying that the building was constructed in accordance with the contract, plans, and specifications, in this: (a) That, while bound under the contract to construct said building wholly upon the lots of defendant, he had failed so to do by putting the same in part upon West Tijeras avenue; and (b) that he had failed to construct the floor in the garage portion of the building so as to “pitch to drain” as called for by the plans.

Damages to defendant for the alleged encroachment on the public street were laid at $1,387 and for the claimed defect in construction of the floor at $1,120, for which amounts defendant prayed judgment against plaintiff.

The plaintiff in reply denied all allegations of new matter pleaded by the defendant. The case was submitted to the jury both on the general issue and for special findings. It returned a general verdict for plaintiff for $4,107.69, the amount claimed, and answered such of the special issues tendered as were required under the form of their submission. Judgment was entered pursuant to verdict, and this appeal followed.

An issue was made in the proof as to whether the plans required the entire garage floor to “pitch to drain,” or only an area thereof approximately 20x25 feet in dimensions, with sand pit or drain in center where cars were placed for washing. The floor plan consisted of a display room at the front. A parts room and an office immediately adjoining the display room at the rear divided the floor plan into two sections-the display room and the car storage or garage portion of the building. The car storage room occupied by far the greater portion of the floor space of the building.

Upon the map or plan of the building covering the car storage section thereof appeared the legend, to wit:

“5' Concrete Floor Pitch to Drains”

It was undisputed that only one drain was called for by the plans. It was located underneath a sand trap in the corner of the building appropriated to car washing. It was also an undisputed fact that an area of approximately 20x25 feet in dimensions around this sand trap did pitch to the drain. There was also evidence that, in order to have the entire floor of the garage room pitched to this drain, the front or upper sections of the garage floor would require elevation some six inches, a condition testified as undesirable on a floor devoted to the storage of cars. In addition, a civil engineer who supervised the construction of this building for plaintiff, and who also assisted defendant's architect in the drawing of the plans, explained certain symbols consisting of four small lines about an inch long pointing toward the sand trap as indicating the portion of the floor which was to pitch toward the drain, and that they constituted the only marks or symbols indicating drainage anywhere on the map.

[1] The jury, both by its general verdict and by its answer to one of the special issues submitted, found the plans did not require the entire floor to pitch to drain. There was substantial evidence to support this finding, and the ambiguity as to the true meaning of the plans on this question warranted the court in submitting to the jury their proper interpretation.

The next point relied upon for reversal is not so easy of solution. It relates to a claimed encroachment. We think it must be taken as an admitted fact in the case, as tried, that an encroachment exists. The form of the general charge and the special issues submitted seem rather to take such fact as granted; it being left to the jury to say what damage, if any, resulted to defendant from the encroachment. And, as affecting the question of damage, the court charged the jury that the decree entered by the district court of Bernalillo county in a certain suit theretofore prosecuted by the plaintiff, Marchant, against the defendant, McDonald, and the city of Albuquerque, involving the question of such encroachment, “fully and completely protects the possession, use and enjoyment of the defendant and his successors in title.”

The following special issue, at defendant's request, was submitted to the jury and answered by it as indicated, to wit: “If you find that the defendant has been damaged by reason of the building having been placed in part upon West Tijeras Avenue, how much do you find that the defendant has been damaged by the building being so built? Answer: None.”

The decree in said cause No. 18131 was introduced in evidence by the plaintiff without objection on the part of the defendant. As above stated, this separate suit was prosecuted by the plaintiff herein against the city of Albuquerque and the defendant herein. The city of Albuquerque filed its answer in said suit, and the defendant, McDonald, defaulted. The decree entered recited that there was a projection at the northeast corner of the building of 0.31 feet into West Tijeras avenue. It adjudicated, as the city admitted, that said projection was without damage to the city, and that the same, as consented to by the city in its answer, might remain “as now constructed and may remain so extending, projecting and jutting into West Tijeras Avenue as aforesaid, as long as said building shall stand as now constructed; and until such time as said building shall be torn down, removed and destroyed.”

It was further adjudicated, nevertheless, that the city had not waived or disclaimed its right and title to that portion of the street covered by the projection, and should never be barred or estopped from asserting and claiming its right and title thereto. In addition, the decree awarded personal judgment against the defendant, McDonald, in the sum of $3,993.69, with interest.

Within thirty days the defendant, McDonald, moved to vacate the default entered as to him upon the ground that the complaint in said cause had sought no money judgment against him; that he had a good and meritorious defense against any money demand, in that he was not indebted to the plaintiff, Marchant, and in that said plaintiff had failed to construct the building upon land owned by said defendant, as in his contract he had agreed to do, but had erected the same in part upon a public street of the city of Albuquerque. The default against McDonald by mutual consent was set aside with the proviso in the order setting it aside “that this order shall in nowise affect or invalidate the judgment and decree entered in said cause against the defendant, the city of Albuquerque, a municipal corporation.”

Perhaps the major portion of the appellant's brief is devoted to an able discussion of the effect of this decree upon the rights of the parties. It is strongly argued that the projection, though slight, renders unmarketable the title of defendant to the lot area occupied by the building in question; that the decree against the city in cause No. 18131 is not res adjudicata of the right of the city or of adjoining owners to have the projecting portion of said building removed from the city street.

When and under what conditions the slight...

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