Moss v. Speck, 43241
| Decision Date | 29 May 1981 |
| Docket Number | No. 43241,43241 |
| Court | Nebraska Supreme Court |
| Parties | Donald MOSS and Betty Moss, Appellees, v. LaMoine SPECK, doing business as LaMoine Speck Construction Co., Appellant. |
Syllabus by the Court
1. Contracts: Damages. Where defects in materials, construction, or workmanship are remediable without materially injuring or reconstructing any substantial portion of the building, the measure of damages is the cost of remedying the defects.
2. Contracts: Damages. Where the defects cannot be remedied without reconstruction
of or material injury to a substantial portion of the building, the measure of damages is the difference between the value as constructed and the value if built according to the contract.
3. Judgments: Appeal and Error. The judgment of the trial court in a law action where a jury has been waived has the effect of a jury verdict and will not be set aside unless clearly wrong.
Paine & Huston, Grand Island, for appellant.
W. G. Blackburn of Cunningham, Blackburn, Von Seggern, Livingston, Francis & Riley, Grand Island, for appellees.
Heard before KRIVOSHA, C. J., WHITE, and HASTINGS, JJ., and HENDRIX and KNAPP, District Judges.
This is an action at law brought by Donald Moss and Betty Moss, husband and wife, against LaMoine Speck, doing business as LaMoine Speck Construction Co., alleging breach of warranties contained in the parties' written contract for the construction by defendant of a residence for plaintiffs.
Construction was completed, or nearly so, in early October 1976. Plaintiffs moved into the residence a few days later, although a required "occupancy permit" allowing them to do so had not yet been obtained from the city building inspector. On March 19, 1977, following a 10-inch snowfall, the roof of the residence "sagged" to such a degree that the city building inspector refused to issue the occupancy permit.
That official, together with a private engineer retained by plaintiffs, inspected the roof and suggested certain repairs thereto which were attempted by defendant, but to little avail. Thereafter, plaintiffs' engineer reinspected the roof and concluded that the original defects in construction had been compounded rather than cured by the attempted repairs and that replacement of the roof was required. Plaintiffs thereupon hired a second contractor who reconstructed the roof at a cost to plaintiffs of $20,207.80.
This action followed, plaintiffs alleging that defendant breached the contract by failing to construct the residence in a "workmanlike manner according to standard practices," and by failing to construct the residence so that it would be suitable for residential purposes and would comply with all applicable building codes.
The case was tried to the court, sitting without a jury. On the trial, defendant conceded that various substantial errors occurred in his construction of the roof. Plaintiffs prayed for the amount they paid the second contractor, less certain credits admittedly due defendant. No evidence as to the value of the residence as constructed by ...
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BLB Aviation S.C., LLC v. Jet Linx Aviation, LLC
...performed, and performance in accordance with the contract is infeasible or possible only at inordinate cost. See Moss v. Speck, 209 Neb. 46, 306 N.W.2d 156, 157–58 (1981). The Nebraska Supreme Court has further explained that the plaintiff is entitled to damages measured by the cost of rep......
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Eliker v. Chief Industries, Inc.
...asserts that the proper remedy for breach of a construction contract may be found in the language of this court in Moss v. Speck, 209 Neb. 46, 48, 306 N.W.2d 156, 157 (1981): [W]here defects in materials, construction, or workmanship are remediable without materially injuring or reconstruct......
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T.O. Haas Tire Co., Inc. v. Futura Coatings, Inc., A-91-056
...that the roof had no value whatsoever for the purpose for which it had been built when it was completed. Haas relies on Moss v. Speck, 209 Neb. 46, 306 N.W.2d 156 (1981). In that case, a house could not be issued an occupancy permit because the roof was faulty and the house was totally with......
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BLB Aviation S.C., LLC v. Jet Linx Aviation, LLC
...that such construction and completion would involve an unreasonable economic waste.’ " 748 F.3d at 841 (quoting Moss v. Speck, 209 Neb. 46, 306 N.W.2d 156, 158 (1981) (quoting 5 A. Corbin, Contracts § 488 (1964))). Diminution-in-value damages provide the alternative measure, consisting of t......