Mitchell v. Carlson

• Decision Date: 09 July 1957
• Docket Number: No. 9430,9430
• Citation: 313 P.2d 717,132 Mont. 1
• Parties: Louis M. MITCHELL and Margaret C. Mitchell, husband and wife, Plaintiffs and Respondents, v. A. F. CARLSON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 717

313 P.2d 717

132 Mont. 1

Louis M. MITCHELL and Margaret C. Mitchell, husband and wife, Plaintiffs and Respondents, v. A. F. CARLSON, Defendant and Appellant.

No. 9430.

Supreme Court of Montana.

Submitted May 6, 1937.

Decided July 9, 1957.

Eugene H. Mahoney, Thompson Falls, for appellant.

A. S. Ainsworth, Thompson Falls, for respondent.

HARRISON, Chief Justice.

The plaintiffs in the lower court purchased a residence in July 1952 from A. F. Carlson, the defendant, for $11,000, entering into an oral agreement that they would pay $6,500 down, balance to be paid when the house was completed and plaintiffs moved in. The plaintiffs however paid the balance before completion and moved into the house. The house was completed shortly thereafter with the exception of constructing the front steps and sidewalk, which work it was agreed would be done in the spring.

After plaintiffs had moved into the dwelling, complaint was made to defendant that a crack had developed in the bedroom and that nail heads and stripping over the seams in the sheetrock in the living and dining room were visible; that the ceiling in this room had sagged in one place; that the plastic tile in the bathroom and kitchen commenced to curl and peel off the base, and some of the doors would not close properly; that the cupboard doors fit improperly and would not close; and that there were numerous other defects in the house.

Defendant contends that he offered to correct these defects immediately or in the spring, whichever was agreeable to plaintiffs, and he and Mr. Mitchell agreed that the work would be done in the spring. This, however, Mr. Mitchell could not recall at the time of the trial. Mrs. Mitchell denied any such agreement.

At the time the tile peeled in the bathroom, defendant went to Missoula and returned with sufficient tile to redo the bathroom floor, but Mrs. Mitchell would not accept the tile because she contended that the agreement called for roll-type inlaid linoleum.

Although plaintiffs and defendant consulted in regard to correcting the defects, no agreement could be arrived at because the manner in which defendant wished to cure them was not suitable or satisfactory to plaintiff.

In March 1953, Louis M. Mitchell demanded $3,000 from defendant to compensate for the defects and poor material used in the home. This, defendant refused to pay and this action was instituted.

Plaintiffs, in their amended complaint, alleged that defendant 'promised and agreed to furnish and construct a modern home, complete in every detail, and to use first-class lumber and material throughout the dwelling' for the sum of $11,000, and that 'immediately after moving into said dwelling,' they discovered, 'from an examination thereof, that the house was constructed of cheap and inferior materials, and that all the carpenter work and finishing was very poorly and inadequately done,' and that defendant refused to change, remodel or complete the dwelling in the manner agreed. Plaintiffs set forth a detailed list of the defects and omissions for which they brought this action. Plaintiffs then alleged that in order to make the dwelling conform to the specifications agreed upon, it would cost the plaintiffs at least $3,000, and in addition it would cost at least $250 to construct the front steps and sidewalk. Defendant demurrer to this amended complaint both specifically and generally, which demurrers were overruled.

Defendant in his answer admitted some of the defects and omissions complained of, and alleged that he had always been ready and willing to correct these defects and omissions, but had been prevented from so doing by the plaintiffs, and particularly by the plaintiff, Margaret C. Mitchell.

Upon the trial, plaintiffs testified to the defects and omissions complained of, admitted that defendant had offered to remedy those defects, but testified the manner in which he wished to remedy them did not conform to the specifications orally agreed upon the refused to allow him to do any further work upon the house. They also admitted that they had agreed to allow defendant to build a sidewalk and steps in the spring, but that after discovering the defects and omissions complained of in the complaint no longer felt him qualified to do the work.

To support plaintiffs' testimony a former contractor, Leo Redding, a carpenter of some sixteen years experience, testified as to the defects and his estimate of the cost of repairing them. He enumerated the cost of repairs as to each specific item: allocating $1,200 to $1,500 for repairing the sheetrock; $200 for repairing the floors; $20 to replace two doors plus cost of installation; and $50 for new linoleum in kitchen and bathroom. He made no estimate as to the cost of repairing the cupboards, bathroom tub or building the sidewalk and steps. Two other persons testified as to the existence of the defects; one, Mr. Buchanan, an electrician and plumber, experienced in the building trades, testified the only way he knew of to correct the defects in the sheetrock was to tear it down and put it up new.

Defendant in his testimony contradicted plaintiffs' and their witnesses' testimony as to the method of repairing the defects and as to the cost of repair.

The jury returned a verdict in favor of the plaintiffs in the sum of $2,000, and judgment was entered thereon from which this appeal was taken.

The defendant alleges four specifications of error: (1) The court erred in giving plaintiffs' proposed instruction No. 2, given as court's instruction No. 4; (2) The judgment is contrary to the law and evidence; (3) The evidence was insufficient to substantiate the verdict; and (4) Misconduct on the part of counsel for plaintiffs and the court. We shall consider them in this order.

The first specification of error is that the trial court erred in giving instruction No. 4, reading:

'You are instructed that if you find from a preponderance of the evidence in this action that plaintiffs are entitled to damages, then in arriving at the measure of damages, it is the amount which will compensate the plaintiffs for all detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom, or which has resulted therefrom.'

The defendant excepted to this instruction on the grounds it was too broad and would allow the jury to 'compensate for damages not alleged or prayed for in the amended complaint.' Defendant cites in support of his contention the following quotation from Montgomery v. Karavas, 45 N.M. 287, 114 P.2d 776, 781:

'Where the contractor fails to keep his agreement, the measure of the employer's [owner's] damages, whether sought in an independent action or by recoupment or counterclaim, is always the sum which will put him in as good a position as if the contract had been performed. If the defect is remedial from a practical standpoint, recovery generally will be based on the market price of completing or correcting the performance, and this will generally be shown by the cost of getting work done or completed by another person. * * * 5 Williston on Contracts, Sec. 1362.'

While defendant may be correct in stating the above as the generally accepted measure of damages for breach of a construction contract, it does not necessarily follow that the one given is erroneous.

R.C.M.1947, Sec. 17-301, provides the following as the measure of damages for breach of contract:

'For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which in the ordinary course of things, would be likely to result therefrom.'

Examining the court's instruction in the light of the statute, it is apparent that it was phrased in the words of the statute and contains essentially the same criterion upon which damages for breach of contract are based. Although the codes specify damages for breaches of other types of contract there is no express provision for damages in breach of construction contracts.

The above section was applied in the recent case of Hein v. Fox, 126 Mont. 514, 254 P.2d 1076, 1079. In that case the contract called for the defendant to drill a water well for plaintiff. He failed to do so, the court instructed the jury that they could find for plaintiff up to the sum of $1,650; they returned a verdict for $1,000. On appeal this court held that R.C.M.1947, Sec. 17-301, was the proper measure of damages to be applied for failure of the defendant to comply with the contract.

In McFarland v. Welch, 48 Mont. 196, 136 P. 394, the court said R.C.M.1947, Sec. 17-301, then section 6048, R.C.M.1907, was the proper measure of damages to be applied to compensate plaintiff for the difference between the contract price and the expense to him of doing the work.

Applying the statutory rule of damages to this case it is apparent that plaintiffs will be compensated only for the 'detriment proximately caused' by the breach, viz., the cost of making the repairs necessary to complete the house in accordance with the parties' agreement. The phrase 'proximately caused' restrains the jury from awarding damages beyond the amounts proven in the evidence at the trial resulting from defendant's breach of contract.

The supreme court of Oklahoma applied a statute almost identical to R.C.M.1947, Sec. 17-301, in the case of National Surety Co. v. Board of Education, 62 Okl. 259, 162 P. 1108. That case involved an action for breach of a builder's contract because the builder had failed to perform the contract by using defective materials. The court, in affirming recovery, said that the statute was merely declaratory of the common law for breach of contract and compensated plaintiff only for the detriment caused by defendant's breach of contract, viz., the cost of repairs.

Assuming, arguendo, the...