Ottawa Plumbing, Heating & Air Conditioning, Inc. v. Moore

• Decision Date: 07 July 1962
• Docket Number: No. 42863,42863
• Citation: 372 P.2d 1011,190 Kan. 201
• Parties: OTTAWA PLUMBING, HEATING AND AIR CONDITIONING, INC., Appellee, v. Lester MOORE, Appellant.
• Court: Kansas Supreme Court

Page 1011

372 P.2d 1011

190 Kan. 201

OTTAWA PLUMBING, HEATING AND AIR CONDITIONING, INC., Appellee, v. Lester MOORE, Appellant.

No. 42863.

Supreme Court of Kansas.

July 7, 1962.

Syllabus by the Court

1. An owner had no general contractor to construct a new home and contracted with several independent contractors, one being the plaintiff, to perform separate portions of the work. The plaintiff installed two bathtubs free from defects or blemishes in a workmanlike manner, covered them with a protective coating, and vacated the area for workmen of other contractors who worked around the tubs. When construction was completed and the protective coating removed in preparation for occupancy, both tubs were found to be blemished. In an action by plaintiff to recover the balance due on the contract, it is held: The bathtubs were to be treated as the property of the owner when installation was completed, and plaintiff was not chargeable with the damage in the absence of proof that the blemishes were caused by the negligent acts of its workmen.

2. The test as to the time when a piece of work is completed under G.S.1949, 60-1402 in order to preserve a lien is not determined by the amount of work done, but whether the unfinished work was a part of the original contract, necessary to be done to complete the job and comply in good faith with the requirements of the contract.

3. The record in an action to foreclose a mechanic's and materialman's lien on defendant's dwelling is examined, and it is held: The district court did not err (1) in finding (a) that the bathtubs were free from defects when installed and that the blemishes were not caused by plaintiff's workmen and (b) that material furnished and labor performed on December 17, 1958, were necessary for the completion of installations specified by the original contract and improved their performance, and (2) in overruling the defendant's motion for a new trial.

Thomas E. Gleason, Ottawa, argued the cause, and Douglas Gleason and Jules V. Doty, Ottawa, and Hollis B. Logan, Topeka, were with him on the briefs for appellant.

Richard C. Byrd, Ottawa, argued the cause, and Robert A. Anderson and James G. Kahler, Ottawa, were with him on the briefs for appellee.

FATZER, Justice.

Plaintiff commenced this action against Lester Moore to foreclose a mechanic's and materialman's lien on real estate in Franklin County. Issues were joined and trial was by the court which made extensive findings of fact, conclusions of law, and rendered judgment for the plaintiff for $1,457.30 plus interest, and adjudged $1,200 of that amount to be a lien upon the defendant's dwelling.

The pleadings will not be referred to since the findings of fact best tell the story of this controversy, which are summarized as follows:

On or about November 29, 1957, the plaintiff, by its president, entered into an oral agreement with the defendant whereby the plaintiff agreed to design, furnish and install all plumbing, heating and air conditioning in connection with the construction of a new home for the defendant for a total consideration of $4,300. There were no plans and specifications involved other than a general floor plan of the proposed dwelling. As to the plaintiff's contract, the floor plan showed only the location of plumbing fixtures. The plaintiff entered into the agreement with the knowledge that there was no general contractor to construct the dwelling; that it would be one of several independent contractors performing separate portions of the construction, and that it would be required to coordinate its work with the other independent contractors.

Construction of the dwelling commenced on November 29, 1957, and continued to July 6, 1958, when the dwelling was occupied by the defendant as his residence. Minor details of plumbing, heating and air conditioning work remained to be completed. Roy Brown, Jr., the plaintiff's principal employee and in charge of the Moore job, performed cleanup work and made minor adjustments until July 29, 1958.

On September 15, 1958, the plaintiff corporation ceased to be actively engaged in the plumbing business and Brown bought plaintiff's stock of merchandise, and began business for himself. Brown agreed to service all jobs previously installed by the plaintiff.

During the fall and early winter of 1958, defendant contacted Brown on several occasions to make adjustments in the heating system and duck work in an attempt to improve the functioning of the blower and controls. The Coleman Company, the manufacturer of the furnace and air conditioner, sent representatives to Ottawa to assist in correcting and adjusting the heating and ventilating system. On December 17, 1958, while investigating a complaint from the defendant about drafts, Brown discovered an open air space between two joists leading to the unexcavated portion of the basement. He covered the space with a piece of tin 3 feet square for which he was later paid by the plaintiff.

In the regular course of construction, two bathtubs were installed in adjacent bathrooms and connected with hot and cold water and the drain. After installation and while they were in a good condition Brown covered them with a protective coating of eight to ten thicknesses of newspaper which were pasted to the enameled surface. When the tubs were installed, the bathrooms were not completed but were only framed in, that is, the 2x4 studdings were in place. The plaster or sheetrock was not in place and there was work to be done by the carpenters above and below the tubs.

When the protective paper was removed and the tubs cleaned in preparation for occupancy of the dwelling, blemishes or defects were discovered in both tubs. The tub in the west bathroom was found to be damaged by an indentation about the size of a fingernail, which had the appearance of being struck by a sharp instrument from the outside. There was no evidence that this blemish was caused by plaintiff's workmen. When the protective paper was removed from the tub in the east bathroom, a patch of the porcelain surface covering approximately 2x3 inches came off in one piece. The evidence established by the size and shape of the porcelain removed from the tub that the tub was either defective or it was hit by a blow on the under or cast iron side. The district court found that the evidence failed to establish that the blemish was due to a defect or that it was caused by an act of one of pl...