Newcomb v. Schaeffler, 17377

• Decision Date: 24 January 1955
• Docket Number: No. 17377,17377
• Parties: Herbert J. NEWCOMB, Jr., and Bernard H. Johnson, Plaintiffs in Error, v. Betty W. SCHAEFFLER and Willy J. Schaeffler, Defendants in Error.
• Court: Colorado Supreme Court

Page 409

279 P.2d 409

131 Colo. 56

Herbert J. NEWCOMB, Jr., and Bernard H. Johnson, Plaintiffs in Error, v. Betty W. SCHAEFFLER and Willy J. Schaeffler, Defendants in Error.

No. 17377.

Supreme Court of Colorado, En Banc.

Jan. 24, 1955.

Fred M. Winner, William G. Berge, Denver, for plaintiffs in error.

Holland & Hart, Patrick M. Westfeldt, Robert P. Davison, Denver, for defendants in error.

KNAUSS, Justice.

In the trial court plaintiffs in error were defendants and defendants in error were plaintiffs. We will refer to the parties as they there appeared.

Plaintiffs' action was one for damages based on alleged breach of contract. By the written contract sued upon, defendants agreed to erect a residence on certain lots owned by plaintiffs, 'as shown on the drawings and described in the Specifications prepared by The Owners' and 'to find, provide and furnish such materials of such kinds, qualities and descriptions, as shall be fit, proper and sufficient for completing and finishing all the work or works mentioned in a good, substantial and workmanlike manner to the satisfaction of and under the direction of the Owner.' The plaintiffs agreed to pay defendants therefor the 'actual cost plus two thousand dollars * * * from time to time, as the work progresses.'

It is admitted plaintiffs paid the actual cost of all materials and labor connected with the erection of said residence property, together with one thousand dollars on account of defendants' profit.

It is further admitted that plans for the structure were furnished by plaintiffs, but that no specifications were ever prepared or submitted by anyone. Work was commenced in July, 1951 and continued until September, 1951, when defendant Johnson reported to Mr. Schaeffler that cracks had developed in the foundation and walls of the structure. After consultation with a structural engineer, soil samples were submitted to a laboratory for analysis. The report showed the soil on which this building was being erected contained a concentration of calcium carbonate. Certain work was done by defendants in an attempt to solidify the soil by chemical treatment thereof and underpinning the foundation. The walls continued to crack, and on account of this condition and other alleged structural defects and omissions this lawsuit resulted.

By cross-complaint, defendants sought recovery of the balance of one thousand dollars claimed to be due as their balance of profit on the job.

After issue joined, trial was to the court and judgment in favor of plaintiffs for $6,050 was entered, from which defendants bring the cause here by writ of error.

The trial court found from the evidence that defendants did not construct the residence in a good and workmanlike manner; that they deviated from the plans submitted; that they failed to ascertain the condition of the soil on which the house was to be built, and as a result of the soil condition and defendants' failure to correct the condition, the walls and foundation of the structure cracked and fell apart; that after plaintiffs occupied the house the walls and foundation continued to crack; that plaintiffs expended $1,350 to correct the soil condition; that defendants failed to properly grade the property, allowing water to collect around and undermine the foundation walls; that defendants failed to properly reinforce the foundation walls; that defendants failed to place the footings and foundation walls on firm soil. These, together with other lesser defects and variations from the building code, were the basis of the court's findings that the cost of the major structural repairs to the house were $4,000; that the cost of replacing certain moldings and trim, patching of plaster, replacing brick and other items was $1,500. Because the building was not completed within the time specified and plaintiffs were delayed in taking possession thereof, the trial court awarded them $200. From this total of $7,050 the trial court deducted a balance of one thousand dollars found to be due from plaintiffs to defendants for their services under the contract. Plaintiffs assert the trial court erred in allowing defendants this one thousand dollars credit. The findings of the trial court, amply supported by competent evidence, contain separate and independent findings of defendants' failure in performance that have no relation to the soil problem. Plaintiffs' expert, Falkenberg, testified concerning the level of the house, the slope of the land and other structural defects and deficiencies. It was also his opinion that the foundations were not placed deep enough and there is substantiating evidence to corroborate the testimony of the expert.

There is ample competent evidence in the record to sustain the findings and conclusions of the trial court concerning the deviation from the plans, structural defects, failure to reinforce the foundations, and that defendants failed to perform their contract in good and workmanlike manner to the satisfaction of plaintiffs, and that defendants did not complete the house within the time limited, for all of which the trial court awarded plaintiffs damages in the sum of $5,700.

We have not herein reviewed all the evidence of defects and imperfections in the structure. Certainly there was ample evidence to show faulty construction. Under the circumstances of this case at least a reasonable inference sufficient to support the finding of the trial judge arises that these results were attributable to the negligence, oversight and failure of defendants to comply with the plans and their contract.

The defects in construction were not only testified to, but the trial judge went out and inspected the buildings and then entered his findings after he had observed the structural defects and imperfections.

Under the...