Mosaic Tile Co. v. Chiera

• Decision Date: 23 June 1903
• Court: Michigan Supreme Court
• Parties: MOSAIC TILE CO. v. CHIERA.

95 N.W. 537

133 Mich. 497

MOSAIC TILE CO. v. CHIERA.

Supreme Court of Michigan

June 23, 1903

Error to Circuit Court, Wayne County; Robert E. Frazer, Judge.

Action by the Mosaic Tile Company, a corporation, against Gabriel Chiera. Judgment for plaintiff. Defendant brings error. Affirmed.

James H. Pound, for appellant.

Bowen Douglas, Whiting & Murfin, for appellee.

HOOKER, C.J.

The defendant contracted, in writing, for the tilework in an elaborate Turkish bath. By this contract the plaintiff promised to furnish and put in place, including the concrete foundation, 'all of the tilework, for floors, walls ceilings and plunge pools, required for a Turkish bath house,' etc. It was further agreed that plaintiff would 'do the work and furnish the materials to the full and entire satisfaction of the superintendent of said building J. W. Cotteral, Jr., and to the satisfaction of the defendant.' Plaintiff further agreed 'that it will warrant and guarantee the work put in the said building by them and embraced in this contract for the period of five years from the date of completion; and that they will within ten days after receiving notice, replace and make good any damage to tilework caused by imperfect workmanship of materials, or which may be caused by the settling of floors or foundations due to any cause whatever. It being understood that this guarantee does not cover damage caused by accident nor willful or malicious destruction by employs or the public. The said party of the second part further agrees to furnish bond for two thousand dollars ($2,000) signed by two responsible sureties, for the faithful performance of this contract.' The bond was given. Payment to the extent of 85 per cent. was to be, and was, made as the work progressed and 15 per cent. was to be paid within 60 days, after completion and acceptance. This 15 per cent. has not been paid, and this action was brought to recover it.

The declaration contained a special count upon the writing and the common counts. With a plea of the general issue, the defendant filed a notice of recoupment, which alleged that the 'tiling faded and lost its original color, and had never been replaced by the plaintiffs, although requested,' etc., and 'that the tiling and floor had settled out of shape, and had bulged so as to be uneven, and that it did not drain, and in consequence the water would stand in pools upon it, and that the material and labor were of inferior quality.'

The controversies of fact appear to have been, in the main, first, whether the plaintiff furnished the materials and did the work as required by the contract; second, whether the same was to the satisfaction of the defendant, and was accepted by him; third, whether the tile faded or lost their original color from any fault in the tile; fourth, whether the water stood upon the floor, and would not drain, through plaintiff's fault--all of which questions were submitted to the jury. A verdict and judgment for the plaintiff resulted, and the defendant has taken a writ of error. Upwards of 120 errors are assigned. We cannot consistently discuss each separately, and by far the greater number would furnish little excuse for so doing.

In his instructions to the jury, the learned circuit judge said that the plaintiff had undertaken that his work should be satisfactory to the defendant, and that, before he could be entitled to a verdict, he must show not only that he had done the work according to his contract, but that it had been accepted by the defendant. In that case he would be entitled to recover upon the contract the remaining 15 per cent. of the contract price; otherwise he could not recover upon the contract. He said, further, that if the work had not been accepted, or if the contract had not been fully performed the plaintiff might recover, under the common counts, the value of the material furnished and labor performed, less such damages as the defendant had sustained through the failure of the plaintiff to carry out the contract. He instructed the jury that the contract bound the plaintiff to furnish good, substantial tiling, but not better than such tiling usually is; that much testimony had been introduced in regard to the cleaning of the tile, and the methods used by the defendant in that respect; and that this testimony had a bearing upon the questions whether this was good or poor tiling, and whether it had received proper treatment by the defendant. He said to the jury that if the water failed to drain off, and this was due to the furnishing of improper levels or slope by the defendant's superintendent, the plaintiff was not liable for the defect, and that, if the bulge and cracks in the bottom of the pool were due to a defective foundation furnished by the plaintiff, it was liable, while, if occasioned by work done by another contractor, it was not. This was a clear and succinct charge, of the main features in the case, and was easily comprehensible by the average juror. Defendant's counsel have excepted to, and assigned error upon, each of his 28 requests to charge. Many of these requests are abstract propositions of law, without anything to indicate to the jury their application to the case; e. g.: 'Parties who are of full age and competent may make contracts, which it is the duty of courts to enforce as made.' 'The purpose of construction of a contract is to give effect to an...