Omaha Home for Boys v. Stitt Const. Co., Inc., 40188

• Decision Date: 11 February 1976
• Docket Number: No. 40188,40188
• Citation: 195 Neb. 422,238 N.W.2d 470
• Parties: The OMAHA HOME FOR BOYS, Appellee, v. STITT CONSTRUCTION COMPANY, INC., et al., Appellants.
• Court: Nebraska Supreme Court

Page 470

238 N.W.2d 470

195 Neb. 422

The OMAHA HOME FOR BOYS, Appellee, v. STITT CONSTRUCTION COMPANY, INC., et al., Appellants.

No. 40188.

Supreme Court of Nebraska.

Feb. 11, 1976.

Syllabus by the Court

1. Alleged errors in instructions given by the trial court will not be considered on appeal when they were not raised in the motion for new trial.

2. The failure to object to instructions after they have been submitted to counsel for review will preclude raising an objection on appeal.

3. In an action on a performance bond where the surety admits execution of the bond but does not admit defective performance by the contractor, the plaintiff is entitled to recover an attorney's fee under section 44--359, R.R.S.1943.

John W. Delehant, Omaha, for appellants.

John A. Rickerson, Omaha, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, and CLINTON, JJ.

BOSLAUGH, Justice.

This is an action for damages arising out of a construction contract. In 1969 the defendant, Stitt Construction Company, Inc., entered into a written contract to construct a gymnasium building and other improvements for the plaintiff, The Omaha Home for Boys, upon its property in Omaha, Nebraska. The total contract price was in excess of $640,000. The contract contained detailed specifications as to how the project was to be built.

In addition to the gymnasium building, the contract provided for the construction of a concrete patio area on one side of the building and a large asphalt play area on the other side of the building. The contract also called for the construction of two large planters adjacent to the building and patio area, a utilities tunnel, and various sidewalks and driveways. The principal controversy here involves the patio area and play area.

The contract provided that all subgrades for drives, floor slabs, parking areas, running track, sidewalks, and other structures should be 'compacted to 90 per cent of maximum density at optimum moisture content.' All other areas were to be compacted at least '85 percent maximum density at optimum moisture content.' Tests were to be determined by AASHO Standard Method T180D--57. The contract specifically provided: 'The Contractor shall perform the necessary work to meet these compaction requirements.'

On March 1, 1971, the job had been substantially completed. During that spring some settling occurred in the paved areas and the defendant made repairs. The plaintiff continued to have difficulty with the paved areas and structures outside the building and had soil compaction tests made. An engineering firm that made tests in and around the patio area recommended the existing backfill be removed to its full depth and replaced in a dense condition and the surface improvements be reconstructed. In October 1972, the plaintiff's architect requested the defendant to repair the backfill 'around new foundation structures.' The defendant replied that it would proceed with exploratory work upon receipt of $4,988.89, the balance due the defendant under the original contract. The plaintiff then employed another contractor to make the repairs.

This action was commenced in November 1973, to recover the damages the plaintiff alleged it sustained as a result of the failure of the defendant to compact the filled areas to the density required by the contract. The General Insurance Company of America, the surety on defendant's performance bond, was made an additional defendant after the action had been commenced. The insurance company admitted it had issued the bond but did not admit that Stitt's performance under the contract was defective.

The jury returned a verdict for the plaintiff in the amount of $23,414.73 against both defendants. The defendants have appealed.

The record contains evidence which shows in great detail the settling that occurred under the surface of the play area and the patio area. The plaintiff produced an expert witness who testified that it was his opinion the settling was due to a combination of loose backfill and entry of water into the backfill. He further testified that water would not have entered the backfill to the same extent if the original compaction had complied with the requirements of the contract. He explained that when clay is compacted into a dense condition it is very impervious, does not have many voids, and there is very little room for water to travel through the clay. When clay is loose there is lots of room for the water to travel.

The defendant's evidence tended to...