Schaefer v. Gildea

• Decision Date: 01 February 1876
• Citation: 3 Colo. 15
• Parties: SCHAEFER et al. v. GILDEA et al.
• Court: Colorado Supreme Court

3 Colo. 15

SCHAEFER et al. v. GILDEA et al.

Supreme Court of Colorado

February, 1876

Error to the Probate Court of Araphahoe County.

Messrs SAYRE, WRIGHT & BUTLER, for plaintiffs in error.

Messrs JACOBSON & LE FEVRE, and defendants in error.

BRAZEE J.

The defendants in error were the plaintiffs below, and declared in assumpsit upon common counts for work, labor and services laying their damages at $1,500. The plea was the general issue. The cause was tried by the court, a jury being expressly waived. The court found for the plaintiffs below $953.50, for which judgment was given with costs.

The evidence shows a parol contract between the plaintiffs and defendants, by which the plaintiffs below agreed to buy for the defendants the brick in constructing the walls of a building three stories high, including the basement, according to a ground plan, fifty feet wide and ninety feet deep, with a partition wall running through the center of the building; the defendants below agreeing to pay eight dollars and fifty cents per thousand for laying the brick.

The only dispute about the terms of the agreement arising upon the evidence is, whether the walls were to be so constructed as to admit of their being carried up another story. In our view, this disputed point of fact was well disposed of in the court below.

The principal questions of law in the case have reference to damages claimed by reason of the misplacement of the side and center walls of the building.

One question was whether under pleadings as in this case, common counts and the general issue, damages can be recouped; we think they can where a case for damages is made out by a defendant, upon principle and under authorities cited in 5th Robinson's Practice, page 271, etc. The reason for the rule seems to be this, that on a quantum meruit for work and labor, the plaintiff should only recover what he deserves, and where the work sued for has become useless or of less value through the plaintiff's fault in executing it, such negligence and the resulting damages may be shown under non-assumpsit.

The evidence discloses the fact that the lines of the outer walls were located by an engineer in the employ of the defendants below, by stakes in accordance with which the cellar, which was co-extensive in area with the building, was dug under the direction of the defendants below, and one of them was present when the corners of the foundation walls were adjusted in the excavation according to the lines the defendants below had thus established. Therefore the misplacement of the outer walls was not the fault of the plaintiffs below, nor can they be charged with damages resulting therefrom.

As to the partition, the following facts appear. When the walls were up to the top of the first story, or to a point where the floor of the second story was to be laid, the variation of the line of the partition wall three inches from the center line of the building where the plan showed it should have been, was discovered by the defendants below. They did not, however, object to the work going on, nor demand that the partition wall should be taken down then and there and rebuilt upon the line indicated by the plan; on the contrary, by their acts they accepted that wall as it was; they changed the length of their joists to conform to the difference in width of the two compartments of the building, laid the floors, put up the iron front, roofed the building, finished it off and painted it, accommodating their work to the change from the plan.

These acts on their part with knowledge of the variation from the plan amount to an acceptance and assent to the change or waiver of strict performance.

It would be manifestly unjust to allow the owner, under such circumstances, to stand by and see the walls progress to completion, lay the joice, floor and roof his building, put up the front, paint and finish the whole and when pay for laying the walls is demanded, for the first time object that the walls are not placed according to the plan by a few inches, refuse payment and charge the builder with the cost of reconstruction.

Whether, under the circumstances of this case, the defendants might have been allowed damages resulting from the variance or not, we do not express an opinion, but assuming that in respect to the partition wall a case on the part of the defendants below was presented entitling them to damages, the questions put by their counsel did not afford the true rule.

These questions assumed that the damages would be the cost of paring off one side wall where it had been built too far upon the adjoining land, and taking down the partition wall and rebuilding it upon the center line, involving displacement, it may be, of the roof, floors and front. This would involve the reconstruction of the building to a great extent, and an amount of damages far in excess of what would have necessarily resulted from the error in location of the partition when the defendants below discovered it. That error could then have been corrected at the comparatively small expense of rebuilding a part of the division wall if it had been insisted upon then. If the defendants below were entitled to any damages, it would be the difference in the value of the building as constructed and what it would have been worth if it had been constructed according to the plan.

Because the contract was not strictly complied with in respect to the location of the walls, it is urged that the plaintiff below was not entitled to recover any thing, or, if any thing, not the full contract price. It may be conceded that the position would be sound, if in respect to the outer side walls, the defendants below had not, as we have seen, been...