Stewart v. Breckenridge

• Citation: 169 P. 543,69 Colo. 108
• Decision Date: 03 December 1917
• Docket Number: 8780.
• Parties: STEWART v. BRECKENRIDGE et al.
• Court: Colorado Supreme Court

169 P. 543

69 Colo. 108

STEWART v. BRECKENRIDGE et al.

No. 8780.

Supreme Court of Colorado

December 3, 1917

Rehearing Denied Jan. 7, 1918.

Error to District Court, Pueblo County; J. E. Rizer, Judge.

Action by Elmer Breckenridge and another, copartners under the firm name of Breckenridge & Jones, against Elizabeth Stewart. Judgment for plaintiffs, and defendant brings error. Affirmed.

M. J Galligan, of Pueblo, for plaintiff in error.

Hartman & Ballreich, of Pueblo, for defendants in error.

TELLER J.

The defendants in error obtained a judgment against the plaintiff in error for a balance due on a contract for the building of a house, and she brings the case here for review.

The defense was that the work had not been done according to the contract, and that the final certificate by the architect was given after he had been discharged.

The action was to foreclose a mechanic's lien, and the court called a jury to try the issues, which returned a verdict for the amount claimed. The court adopted the verdict, found the plaintiffs entitled to a lien, and entered judgment accordingly.

Plaintiff in error contends that the evidence was insufficient to justify the verdict and judgment, and that there was error in the instructions.

Since in this case the verdict was only advisory, error cannot be assigned on the instructions, either given or refused. Danielson v. Gude, 11 Colo. 87, 17 P. 283; Kellogg v Kellogg, 21 Colo. 181, 40 P. 358; 16 Cyc. 422.

It might be said, however, that the instructions amount to findings of law, and hence, if they did not announce correct rules of law, it must be held that the court did not properly apply the law to the facts.

The principal objection made to the instructions is that they ignore the alleged discharge of the architect, and treat the final certificate as valid and binding. It might be necessary to determine the force of said certificate had the court treated it as determining the question of compliance with the contract; but, inasmuch as there was testimony upon every part of the work alleged to have been improperly done, or not done at all, as well as to the materials of which complaint was made, we cannot assume that the court's conclusions rested upon the certificate.

The other ground urged for reversal is that the evidence does not support the findings. It may be conceded, as claimed, that the contract gave the architect no authority to waive substantial compliance with it, or to make material changes in the form of or materials for the building; but it did authorize him to determine the 'construction and meaning of the drawings and specifications.' That, of course, empowered him to decide whether drawings or specifications should govern in case of conflict between them.

This makes his decision final as to the window sills, since there was as to these a conflict between the plans and the specifications, and this is true also as to the glass on the sides of the front door.

That the trees were not moved from the parking was admitted, but the testimony of the defendants in error that Mrs. Stewart directed them to leave the trees there is not disputed. Likewise it is not disputed that she selected the brick which she now alleges are not according to the specifications. The witnesses best qualified to testify on the stone used agree that the foundations and the window sills are of the stone specified, and none of the witnesses to...