Morris v. Fox
| Decision Date | 09 June 1922 |
| Docket Number | 10,841 |
| Citation | 135 N.E. 663,79 Ind.App. 389 |
| Parties | MORRIS ET AL. v. FOX ET AL |
| Court | Indiana Appellate Court |
Rehearing denied December 8, 1922.
Transfer denied March 15, 1923.
From Lake Superior Court; Virgil S. Reiter, Judge.
Action by Jacob Fox and others against Henry L. Morris and others. From a judgment for plaintiffs, the defendants appeal.
Affirmed.
William J. Whinery and Ralston, Gates, Lairy, Van Nuys & Barnard, for appellants.
William J. McAleer, Francis J. Dorsey and Gerald A. Gillett, for appellees.
Action by appellees against appellants for damages resulting from an alleged breach of a building contract. The averments of the complaint which are necessary to a proper determination of the questions involved in this appeal are, in substance, that in consideration of $ 3,155, appellants were to furnish all the materials and do all the work in the construction of a dwelling house, the work to be done in a "good, substantial and workmanlike manner" and in accordance with certain plans and specifications which, among other things, stipulated that the exterior of the building was to be covered with a material known as Kellastone stucco placed on Byrkett sheathing; that the Byrkett sheathing is so made as to have a right and wrong side, the right side having on the face thereof slots or keys, so that when it is placed outermost, and the Kellastone is applied thereto, the slots or keys will hold the Kellastone in place upon the building; while the other side of the sheathing is more or less smooth with no slots or projecting keys to hold the Kellastone when applied; that "a substantial workmanlike performance" of the contract demanded that the sheathing should be placed on the building with the slots or keys on the outside; that appellants instead of nailing the Byrkett sheathing on the building with the right side, that is to say the side having the slots and keys outermost, nailed the sheathing on the building with the slot or key side innermost; that as a result the Kellastone which was afterwards applied on the exterior of the building by appellants "had no support or surface to cling to," causing much of it to become loosened and to fall, all to appellees' damage.
A demurrer to the complaint for want of sufficient facts having been overruled, an answer in denial closed the issues. Trial resulted in a verdict and judgment in favor of appellees.
Alleged errors assigned are: (1) Overruling demurrer to complaint; and (2) overruling motion for new trial.
It is urged by appellants that the complaint is insufficient for the reason that it is not averred that the contract forming the basis of the complaint contained a provision which required the Byrkett sheathing to be placed upon the building in any particular manner. It must not be overlooked that appellants by their contract agreed to construct the building in a "good, substantial, workmanlike manner." The term thus used by the parties has a fixed meaning in the building trades. To do the work in the building of a house in a good, workmanlike manner, is to do the work as a skilled workman would do it. Fitzgerald v. LaPorte (1897), 64 Ark. 34, 40 S.W. 261. By taking the contract to build the house, using the Byrkett sheathing, appellants held themselves out as workmen skilled in the use of that material; and when they agreed to do the work in a "good, workmanlike manner," appellees had a right to assume that they were skilled workmen, and well knew which side of the sheathing should be placed outermost so as to get the best results, and that they would do the work as men skilled in their trade. Ideal Heating Co. v. Kramer (1905), 127 Iowa 137, 102 N.W. 840. What was the proper way to place the sheathing upon the building was, of course, a question of fact for the jury. The complaint is not drawn on the theory of negligence, but is for a breach of contract; therefore, many of the authorities cited by appellants are not applicable. The court did not err in overruling the demurrer to the complaint.
It appears from the record that there is evidence tending to prove the material allegations of the complaint; also the uncontradicted evidence shows that the house as built is of the value of $ 2,500, but would have been of the value of $ 3,500 if it had been built in accordance with the contract. The trial court instructed the jury that if they found for the plaintiffs "the measure of their damages, if any, is the extent of the difference, if any, between the actual fair cash market value of the house at the time it was turned over to the plaintiffs had it been constructed according to the...
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