Markman v. Hoefer

• Decision Date: 15 November 1960
• Docket Number: No. 50049,50049
• Citation: 252 Iowa 118,106 N.W.2d 59
• Parties: Sam MARKMAN and National Produce Distributors, Inc., a Co-partnership d/b/a Markman National Farming Company, and Lee Markman, Morris Markman and Hy Markman, a Co-partnership d/b/a Markman Potato Farm, Appellants, v. Herbert HOEFER d/b/a Building Products Co., Appellee.
• Court: Iowa Supreme Court

Page 59

106 N.W.2d 59

252 Iowa 118

Sam MARKMAN and National Produce Distributors, Inc., a Co-partnership d/b/a Markman National Farming Company, and Lee Markman, Morris Markman and Hy Markman, a Co-partnership d/b/a Markman Potato Farm, Appellants, v. Herbert HOEFER d/b/a Building Products Co., Appellee.

No. 50049.

Supreme Court of Iowa.

Nov. 15, 1960.

F. J. MacLaughlin, Davenport, for appellants.

McDonald & McCracken, Davenport, for appellee.

GARFIELD, Justice.

For convenience we refer to Sam Markman as plaintiff and disregard the fact he acted in part for two partnerships of which he was a member, both of which, together with the partners, are joined as plaintiffs.

This is a law action in four counts, tried to the court without a jury, to recover damages for alleged defective construction by defendant of a building used for curing and storing onions grown by plaintiff. The building was constructed in July, August and September, 1956, under a written contract dated July 12. Counts I, III and IV each claim $102,232 for loss of 37,663 bushels of onions grown by plaintiff in 1957 and placed in the building with the rest of the crop. Count II claims $15,000 for past and future repairs and changes on the building.

At the conclusion of plaintiff's evidence the trial court sustained what the record designates defendant's 'Motion for Directed Verdict' as to Counts I, III and IV and overruled it as to Count II. Defendant then testified in support of his counterclaim to recover for extras not included in the contract but offered no evidence in defense of plaintiff's Count II. Later the trial court entered judgment for plaintiff on Count II for the cost of repairs to the building, amounting to $2,046.59, reduced by $626 which was awarded defendant on his counterclaim. Plaintiff has appealed but does not dispute the allowance to defendant of $626.

The building in question consists of two parallel warehouses, each 45 by 225 feet, with an 'air tunnel' between them. At each end of the tunnel is a large fan. Air ducts lead from the tunnel into each warehouse near the floor. Air from the ducts is thus forced underneath the onions and up into them to help cure and dry them for storing and marketing.

Principal claim of defective construction is in the roof of the tunnel which is nearly horizontal and two to three feet below the nearest eave of each warehouse roof. The warehouse roofs are the familiar inverted V type. The tunnel roof is of plywood covered with tar paper. There is much uncontradicted evidence that openings were left between many of the plywood sections and there was a space up to an inch in width between the outer edges of the plywood and the adjoining warehouse walls. There is also evidence that the warehouse roofs did not overhang, and in places did not even meet, the vertical wall. These defects caused the roof of the tunnel and the adjoining edges of the roof of each warehouse to leak water when it rained and caused air pressure to escape constantly from the tunnel so proper drying, temperature and air circulation could not be maintained.

About June, 1958, plaintiff, after numerous complaints to defendant of the above conditions, engaged men to remove the tar paper from the tunnel roof, cover the plywood with another layer thereof and apply new tar paper. Cost of this was $2,046.59 which the trial court allowed plaintiff, less the cost of extras furnished by defendant, as previously stated.

I. Plaintiff first assigns error in the sustaining of defendant's motion for directed verdict on his Counts I, III and IV. One reason urged in support of the assignment is that the ground on which it is said the ruling was based--that loss of the onions was not within the contemplation of the parties as likely to follow from a breach of the contract--was not stated in the motion.

It appears that at least the principal basis for the trial court's ruling is that the parties did not contemplate loss of the onions as likely to result from breach of the contract. Defendant says in argument, 'Undoubtedly the real reason underlying this decision rested upon the fact appellant did not anticipate this loss would result. * * * Was this loss contemplated by the parties at the time of entering into the contract?' It is true, as plaintiff asserts and defendant conceded in oral argument here, the motion to direct (or to dismiss) contained no such ground.

Grounds of the motion as to Counts I and II were 1) that no breach of the contract has been shown and 2) by accepting the building in September, 1956, and paying the contract price in January, 1957, with full knowledge of all breaches alleged, plaintiff waived his claim for damages. It is clear the trial court's ruling dismissing Counts I, III and IV was not based upon either of these grounds. The motion could not have been overruled as to Count II and recovery allowed thereon if either of the stated grounds were good.

We think plaintiff's first assigned error must be sustained. We have consistently held the sustaining of a motion to dismiss or for directed verdict will not be approved here upon a ground not asserted in the trial court. American Mutual Liability Ins. Co. v. State Automobile I. Ass'n, 246 Iowa 1294, 1303, 72 N.W.2d 88, 93, and citations; Herbst v. Treinen, 249 Iowa 695, 702, 88 N.W.2d 820, 824.

Although we express no opinion as to the unasserted ground on which the motion was evidently sustained as to Counts I, III and IV, it is apparent defendant would be in better position here if such ground had been stated in support of the motion in the trial court or if it had been decided as a fact question that the claim for loss of the onions was not within the contemplation of the parties. But the effect of the ruling is that such claim was not considered as a fact question but was dismissed as a matter of law on a ground not asserted.

II. It is well settled that a party may, without appealing, rely in this court upon any ground he asserted in the trial court in support of a motion to dismiss or direct verdict even though the motion was not sustained on such ground. Shaw v. Addison, 236 Iowa 720, 733-734, 18 N.W.2d 796, 803-804, and citations; Emmert v. Neiman, 245 Iowa 931, 934, 65 N.W.2d 606, 608; Strom v. Des Moines & Central Iowa R. Co., 248 Iowa 1052, 1064-1065, 82 N.W.2d 781, 788. However this does not aid defendant insofar as Count I was dismissed on motion.

III. In building and construction contracts, in the absence of an express agreement to the contrary, it is implied that the building will be erected in a reasonably good and workmanlike manner and will be reasonably fit for the intended purpose. Economy Fuse & Mfg. Co. v. Raymond Concrete Pile Co., 7 Cir., Ill., 111 F.2d 875, 878-879; Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 10 Cir., Okl., 49 F.2d 146, 149; Rehr v. West, 333 Ill.App. 160, 76 N.E.2d 808; Jose-Balz Co. v. DeWitt, 93 Ind.App. 672, 176 N.E. 864; 17 C.J.S. Contracts § 329, note 53. See also Hill v. Polar Pantries, 219 S.C. 263, 64 S.E.2d 885, 888, 25 A.L.R.2d 1080, 1084; Smith & Nelson v. Bristol, 33 Iowa 24.

There is substantial evidence the roofs of the tunnel and of each warehouse were not constructed in a good and workmanlike manner in the respects heretofore noted. Hence the ruling on defendant's motion may not be upheld on the first ground asserted--that no breach of the contract was shown.

IV. As stated, second ground of defendant's motion was that by accepting the building and paying the contract price with knowledge of the alleged breaches plaintiff waived his claim for damages.

The pleadings raised no issue of waiver. The defense is one which defendant was required to plead. Rule 101, Rules of Civil Procedure, 58 I.C.A.; Schmid v. Automobile Underwriters, 215 Iowa 170, 173, 244 N.W. 729, 85 A.L.R. 4, 7, and citations; Annotation 120 A.L.R. 8, 37 et seq.

Defendant's avoidance of his failure to plead waiver is that the issue was litigated without objection and hence was in the case by consent or acquiescence. It is true plaintiff was cross-examined as to his occupancy and use of the building and payment of the contract price after he knew of the defective construction of the roofs. And the record shows no objection by either side to any offered evidence. We therefore disregard defendant's failure to plead waiver. Andrew v. Miller, 216 Iowa 1378, 1381-1382, 250 N.W. 711, and citations; Wilson v. Corbin, 241 Iowa 593, 605-606, 41 N.W.2d 702, 709, and citations; Cuthbertson v. Harry C. Harter Post No. 839, 245 Iowa 922, 929, 65 N.W.2d 83, 88; Annotation 120 A.L.R. 8, 87.

We think it does not appear as a matter of law, under the circumstances here, that plaintiff waived his claim for damages by his occupancy and use of the building and payment of the contract price. The issue was one of fact, not of law. We must view the evidence in the light most favorable to plaintiff in considering the ruling on the motion.

The evidence is that plaintiff first learned something was wrong with the building after his men started putting the 1956 crop in it. Plaintiff called defendant who plugged holes in the steel studding, but that did not stop the air leakage. Plaintiff first learned water was coming through the tunnel roof and down the walls of the warehouses in the winter of 1956-7 or right after the first of the year. He reported this condition to defendant who repeatedly promised to remedy the condition.

This is part of plaintiff's redirect examination: 'He promised to take care of any defects and to complete the work and I believed what he told me and relied on it. He never performed those promises. Before we started to put our 1957 crop into the warehouses he kept promising right along that he would take care of any defects and we used the warehouses in reliance on his promises. I thought he was reliable.' He also said: 'When I started to use the buildings, I didn't accept them 'as is.' I put the onions into...