Montgomery v. Kimbrough Homes, Inc., 38460

• Decision Date: 09 June 1952
• Docket Number: No. 38460,38460
• Citation: 214 Miss. 519,59 So.2d 273
• Parties: MONTGOMERY et ux. v. KIMBROUGH HOMES, Inc.
• Court: Mississippi Supreme Court

Page 273

59 So.2d 273

214 Miss. 519

MONTGOMERY et ux. v. KIMBROUGH HOMES, Inc.

No. 38460.

Supreme Court of Mississippi.

June 9, 1952.

Dan E. Breland, Jackson, for appellants.

Crisler & Crisler, Jackson, for appellee.

ALEXANDER, Justice.

Appellants brought an action for damages asserted as having arisen from a breach of a building contract by appellee. From a verdict and judgment in the County Court for the plaintiff an appeal was taken to the Circuit Court where the judgment was set aside on the ground that, under the record, the defendant's request for a directed verdict had been erroneously refused.

The contract as shown by plaintiffs consists of two sheets of blueprint drawings which were furnished to the defendant as the basis for his construction bid thereon which was accepted.

There is no question but that the specifications laid out on the first sheet which covered the foundation plan, and those upon the second sheet laying out the dimensions and locations of the rooms, are irreconcilable. The latter calls for a floor plan approximately two feet larger that those shown on the foundation plan. This discrepancy was called by the plaintiffs to the attention of a representative and general agent of the defendant who was supervising the construction. He was instructed by the defendant to disregard this inconsistency. There were assurances given by such representative that some adjustment would be made but that the cost of razing the foundation so as to enlarge it would be prohibitive in cost. The complaints persisted and plaintiffs were told by Mr. Kimbrough that he would brook no delay in completing the financial arrangements. Such details involved a certificate of acceptance of a loan to be guaranteed by the Federal Housing Administration, and a certificate by plaintiffs for the information of a title company, in which they certified by affidavit that the house had been completed according to plans and specifications. The defendant exerted considerable pressure upon the plaintiffs to consummate the loan from whose proceeds it was to receive payment under the contract. Such insistence was backed by a threat of eviction. which in turn employed the leverage of plaintiffs' need for immediate housing.

The foregoing recitals, while contradicted, are drawn up in the plaintiffs' favor since the alleged error is based upon the giving of a peremptory instruction for the defendant. There were many details, some of which are vague, but which add up to the fact of a two foot disparity between the two sheets of blueprints. Testimony as to the extent of damage to plaintiffs included estimates of the added cost to build the house two feet wider, and of the comparative values of the house as planned and as constructed. The inconveniences caused to plaintiffs and the financial disadvantages incident to the asserted impossibility of renting one of the rooms in its existing dimensions were also included in the demand.

The arguments by the defendant, appellee here, revolve about the fact that the plans were prepared at the instance of the plaintiffs and the errors are solely their own; that there was no definite or enforceable agreement to adjust the damages at defendant's expense; that plaintiffs accepted the house as completed and certified that it conformed to the specifications.

On the other hand, the plaintiffs contend that the Federal Housing Administration was not a final arbiter as to the compliance with the plans; that the certificate and affidavit were addressed not to the defendant but to a title guaranty company; and that the work was allowed to continue under protest and with an assurance of an adjustment in the final cost.

The circuit court rendered an opinion in support of his action in dismissing the case in which it was held that the assurances of a reasonable adjustment or allowance in cost by Kimbrough and his representative, if such be a fact, would not create an obligation upon the defendant because of a lack of authority in the agent, a lack of consideration, and the uncertainty of the terms of the so-called new agreement. We are unable to go along with this conclusion. The jury was authorized to find whether there had been a breach of the original contract, and if so, an obligation arose by virtue of such breach and needed neither ratification nor supplemental agreement. It was further held that Kimbrough examined only the first sheet of the plans, made his bid thereon, and began construction without reference to the second sheet. Such procedure was sought to be justified by a practice to ignore the floor plans until that stage of construction had been reached. The jury was not bound to acquit the defendant of negligence or responsibility in this respect. For this reason, the increased cost of taking out and enlarging the foundations is not available to the defendant who utilized the fact of delay and expense incident thereto as pressure upon the plaintiffs to allow the work to proceed, thus practically nullifying the interior floor plans. The proper test is not the cost to the defendant of rectifying the error, but the damage to the plaintiffs by the failure to do so. As stated above, the consent by the plaintiffs that the work be not thus delayed is not, in view of their protest and the assurances of later adjustment, of itself a waiver. If the matter of a new consideration is relevant at all it could as plausibly find place in denying to the defendant the right...