Smith v. Erftmier

Decision Date29 January 1982
Docket NumberNo. 43707,43707
PartiesLarry T. SMITH, Appellant, v. Roger ERFTMIER and The Commercial National Bank of Ainsworth, Nebraska, aNebraska banking corporation, Appellees.
CourtNebraska Supreme Court

Syllabus by the Court

1. Pleadings: Customs and Usages: Contracts. It is ordinarily incumbent upon one who relies on a special custom as a basis of recovery or defense to allege the custom and to plead and prove the other party had knowledge of the custom and contracted with reference thereto.

2. Trial: Judgments: Appeal and Error. Where a law action is tried to the court without a jury, the finding of the court has the effect of a jury verdict and will not be disturbed on appeal unless clearly wrong.

3. Contracts. It is well recognized that, as a general rule, every contract for work or services includes an implied duty to perform the work or services skillfully, carefully, diligently, and in a workmanlike manner.

4. Pleadings: Appeal and Error. Where a certain theory has been adopted and relied upon by the parties during the trial, such theory will be adhered to on appeal regardless of whether it is correct.

5. Contracts: Damages. Where there has been a breach of a contract by one party resulting in a loss to the other, it is the duty of such other party to take all reasonable steps to reduce the amount of his damages.

6. Motions for New Trial: Evidence. Newly discovered evidence is not a ground for a new trial, where the exercise of due diligence before trial would have produced it.

Rodney J. Palmer, Ainsworth, for appellant.

David E. Pavel of Harris, Feldman, Stumpf & Pavel, Omaha, for appellees.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

KRIVOSHA, Chief Justice.

The instant appeal arises out of a contract entered into by and between the appellant, Larry T. Smith (Smith), a contractor, and the appellee Roger Erftmier (Erftmier) for the erection of a grain drying and storage complex to be located upon real estate owned by Erftmier in a rural area of Keya Paha County, Nebraska. The appellee The Commercial National Bank of Ainsworth, Nebraska, is merely a stakeholder in this action, having received some $19,710 from Erftmier to hold pending the settlement of the dispute, and may, for purposes of this case, be disregarded. Smith filed suit against Erftmier for the balance allegedly due on the construction contract. Erftmier denied that he was indebted to Smith in any amount and filed a counterclaim seeking damages based upon Smith's alleged failure to construct the complex in a good and workmanlike manner and in accordance with the contract. Upon conclusion of a trial to the court, a jury having been waived, the trial court denied judgment to Smith on his petition. Further, the trial court entered judgment for Erftmier against Smith on Erftmier's counterclaim in the total amount of $33,544.01 and ordered that the $19,710 held in escrow by The Commercial National Bank of Ainsworth, Nebraska, be applied on the judgment. We believe that the trial court was in all respects correct, and affirm the judgment.

The contract between Smith and Erftmier was entered into on August 29, 1977, and was, in form, a standard AIA Document A101. By its terms Smith was to erect for Erftmier four grain bins, two of which were identified as Butler brand grain bins and two of which were identified as Eaton brand grain bins. The references are to the names of the manufacturers of the bins. In return for the work to be done by Smith, Erftmier agreed to pay to Smith the sum of $109,500, payments to be in accordance with the contract. Attached to the contract and made a part of it was AIA Document A201, "General Conditions of the Contract for Construction." By its terms Smith specifically warranted to Erftmier that "all Work will be of good quality, free from faults and defects and in conformance with the Contract Documents."

Three of the bins were completed by November 18, 1977, and the fourth one was completed in January of 1978. The evidence discloses that bin No. 1, the Butler drying bin, was 36 feet in diameter and had an eave height of 25 feet 8 inches. The second Butler bin had a diameter of 42 feet and an eave height of 33 feet. The remaining Eaton bins had a diameter of 48 feet and an eave height of 26 feet 10 inches.

The evidence discloses that during the construction period Erftmier continued to make payment to Smith even though he had several problems regarding the construction. By the time of trial all of these matters appeared to have been cleared up with the exception of the two now remaining. Those two items consisted of what Erftmier claimed was poor concrete work and inadequate footings and foundations beneath the bins. The evidence discloses that during the construction of the bins the contractor had in his possession a manual entitled "Grain Bin Erection Manual," published by the Eaton company. The manual provided in part: "An adequate foundation is essential to trouble-free service from your grain bin." It further provided that the foundation for the grain bin must be below the frostline. The evidence further disclosed that, rather than having foundations as indicated by the Eaton manual and as Erftmier's expert would have required, bin No. 1 had no footings at all and bin Nos. 2, 3, and 4 all had narrow, shallow footings with what was designated as a "rat ring" going down about 18 inches.

Smith assigns a number of errors, but basically argues three. First, he maintains that when Erftmier took possession of the bins and started using them, he accepted the bins and waived any alleged default; second, Smith maintains that the trial court erred in not finding that proven local custom, tradition, and usage did not require the installation of footings in connection with the construction of the bins; and, finally, that the wrong measure of damages was used.

We turn first to the question concerning custom and usage. In the first place, Smith never pleaded the matter of custom and usage. Moreover, there is no evidence in the record that Erftmier had knowledge of the custom, if one existed, and contracted with reference to the alleged custom. The evidence, quite to the contrary, is that Erftmier did not reside in the area and had no knowledge of any alleged custom and usage with regard to the footings and the foundations. In Fisher v. Stuckey, 201 Neb. 439, 449, 267 N.W.2d 768, 774 (1978), we said: " 'It is ordinarily incumbent upon one who relies on a special custom as a basis of recovery or defense to allege the custom and to plead and prove the other party had knowledge of the custom and contracted with reference thereto.' Timmerman v. Hertz, 195 Neb. 237, 238 N.W.2d 220 (1976). In the present case, Fisher did not allege the custom on which he relies, nor did he plead that the Stuckeys had knowledge of the custom and contracted with reference thereto. In view of this fact, we conclude that Fisher has failed to properly raise the issue of custom in this case, and reject his contention that a trial is necessary to resolve the custom issue." Similarly, in the instant case Smith neither alleged any custom nor did he allege or prove that Erftmier had knowledge of the custom and contracted with reference thereto.

But perhaps even more important in the instant case is the fact that the trial court permitted Smith to introduce all of his evidence with regard to custom and usage, though it was not admissible, and chose not to believe it. Smith called several witnesses, all of whom testified that local custom, usage, and tradition indicated that grain bins erected upon the sandy loam soil in north central Nebraska did not require footings below the frost level for either longevity of the project or economics of the project. Erftmier, on the other hand, called a witness who testified that he had been involved in the design of grain bins for both Butler and Eaton and had prepared and approved the material regarding foundation design found in the Eaton manual. He testified that the foundations for grain bins of the size at issue should have a spread footing below the frostline, and down 50 to 60 inches below the ground.

At best, the question of whether footings and foundations were necessary was a question of fact. The trial court chose to believe Erftmier's witness and disregard Smith's witnesses. This was a matter solely within the discretion of the trial court sitting as a finder of fact, and a conclusion with which we have no authority to change. As we noted in Koperski v. Husker Dodge, Inc., 208 Neb. 29, 39, 302 N.W.2d 655, 661 (1981): " 'The case below was tried to the court. Our rule is well-established. Where a law action is tried to the court without a jury, the finding of the court has the effect of a jury verdict and will not be disturbed on appeal unless clearly wrong.' " Unless we are able to say that the testimony of Smith's witnesses must be believed as a matter of law, which we are not willing to do, then the trial court's decision to...

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