McDermott v. Grimm

• Decision Date: 13 November 1893
• Citation: 4 Colo.App. 39,34 P. 909
• Parties: McDERMOTT et al. v. GRIMM.
• Court: Colorado Court of Appeals

34 P. 909

4 Colo.App. 39

McDERMOTT et al. v. GRIMM.

Court of Appeals of Colorado

November 13, 1893

Appeal from district court, Arapahoe county.

Action by Anthony McDermott and William Robertson against Sadie A Grimm on a contract for the construction of the foundation walls of a building for defendant. From a judgment for defendant, plaintiffs appeal. Reversed.

Reddin & O'Hanlon and Sam. B. Berry, for appellants.

Teller Orahood & Morgan, for appellee.

THOMSON J.

Appellants were plaintiffs below. Their complaint avers that as copartners they entered into a contract in writing, whereby they agreed to build for the defendant foundation walls and five piers of granite stone upon defendant's premises according to plans, for which work, when completed, defendant agreed to pay them the sum of $1,803.40; and that they thereupon, in accordance with and pursuant to the contract and the plans, built the wall and piers, furnishing the labor and materials for the purpose; and built a concrete foundation under the wall, three feet six inches wide and nine inches thick; and that the entire work, when completed was accepted by the defendant. The plaintiffs also allege certain extra work, done at the request of defendant, through her agent, Henry Grimm, making the aggregate for the entire work $2,051.15, which the plaintiffs aver is unpaid, except $700 in cash and $40.31 allowed for certain omissions in the work, claimed by the defendant. The answer admits the contract, but denies the completion of the work pursuant to its terms; denies the performance of the extra work; denies the acceptance of the foundation by the defendant; denies the allowance of $40.31 for omissions; and, by way of counterclaim, sets up the contract and the plans, avers deviation from the plans in important particulars, and a general failure of plaintiffs to comply with their contract, to the serious detriment of the defendant; admits the payment of $700, but avers it was made without knowledge of plaintiffs' failure of compliance, and demands damages for the violation of the contract. The replication denies the counterclaim, except as to the contract; avers that the defendant claimed a variance in some particulars from the contract; denies that there was such variance; but states that, for the purpose of satisfying the defendant, plaintiffs consented to and did allow and credit on their claim $40.31 on account of the alleged variance, and that upon such allowance and credit the work was accepted by the defendant. This is substantially the case made by the pleadings. The defendant had verdict and judgment for one dollar.

The plans, and the specifications accompanying them, were in evidence, but they are not in the record, so that we are in ignorance of what they contained. It sufficiently appears, however, from the evidence preserved, that the work was not done in conformity with the contract. The plans seem to have provided for the concrete foundation with which the walls were underlaid. This foundation was to have been three feet six inches in width, and either nine or ten inches--it does not very clearly appear which--in thickness. That it was not of the uniform thickness of nine inches is shown by the testimony on both sides. Plaintiffs claimed that in the center it was of the requisite thickness, but admitted that at the edges is fell materially short of the requirements. According to the testimony of the plaintiff Robertson, the foundation walls, at their rear, lacked about three and one-half inches of the requisite height, and were therefore out of level to that extent. The deficiencies shown in the evidence for defendant are much more serious in their character and degree, but for our purpose specific mention of what plaintiffs admit is all that is necessary. Upon the foundation walls, in this condition, a three-story brick superstructure was erected, at a cost of about $20,000; the defendant claiming that until after this erection she had no knowledge of the defects in the concrete and foundation walls. Plaintiffs undertook to prove that she knew of them while the work was being done.

This action is brought upon the contract. A literal compliance with its terms is alleged, and upon such compliance the right to recover is based. The allegations are not sustained by the proofs. An averment of performance is not supported by proof of waiver of performance, even conceding that proof of...