Stratmeyer v. Hoyt

• Decision Date: 14 October 1919
• Docket Number: 32660
• Citation: 174 N.W. 243,189 Iowa 85
• Parties: H. W. STRATMEYER, Appellee, v. S. A. HOYT, Appellant
• Court: Iowa Supreme Court

174 N.W. 243

189 Iowa 85

H. W. STRATMEYER, Appellee, v. S. A. HOYT, Appellant

No. 32660

Supreme Court of Iowa, Des Moines

October 14, 1919

REHEARING DENIED MAY 17, 1920.

Appeal from Carroll District Court.--E. G. ALBERT, Judge.

ACTION to recover the contract price of a monument. Verdict and judgment for the plaintiff in the district court. Defendant appeals.

Affirmed.

Reynolds & Meyers, for appellant.

E. A Wissler, for appellee.

GAYNOR J. LADD, C. J., WEAVER and STEVENS, JJ., concur.

OPINION

GAYNOR, J.

I.

It is agreed that, on the 23d day of March, 1916, the plaintiff and defendant entered into the following written contract:

"The said Stratmeyer agrees to furnish and erect on the cemetery lot belonging to M. A. Hoyt estate in the cemetery at Carroll, Iowa, a monument of the following specifications, to wit:

"An exact duplicate as to material, quality, workmanship, finish and dimensions, excepting as to lettering, of the A. B. Cummins family monument in the cemetery at Des Moines, Iowa. The finish of said monument to be what is known as 'twelve-cut hammered work.'

"The lettering on said monument is to be as follows: The word 'Hoyt' is to be made in raised ax square letters on each side of the die and not less than five inches in height, except as may be changed with the consent of said Hoyt.

"The said monument to be placed on a good solid rock concrete foundation of the same dimensions as the base of said monument six and one-half feet deep, the top of said base to be slightly below the surface of the ground. The stone used in said foundation to be either ordinary crushed rock or screened stone of approximately the same size as ordinary crushed rock, and the cement to be used therein to be of first-class Portland cement quality. The bottom half of said foundation to be in the proportions of five to one, and the top half of said foundation to be in the proportions of three to one.

"The said Stratmeyer is also to furnish two markers for the said lot, one at the head of each grave therein, of the same material, workmanship and finish as the said monument, said markers to be 2 ft. long, 1 ft. 4 in. wide and 1 ft. high at the highest point, and having a slight incline as to the top. Said markers to be lettered as follows:

"In the sloping top of the marker at the head of M. A. Hoyt, the following letters to match the lettering on said monument, to wit: 'Father.' On a line beneath 'M. A. Hoyt.' On a line beneath that 'December 27, 1839.' On a line beneath that 'December 27, 1914.'

"On the sloping top of the marker at the head of the grave of John Truman Hoyt is to be the following: 'John Truman Hoyt.' On a line beneath that 'February 16, 1875.' On a line beneath that 'July 21, 1886.'

"The said markers are to be placed on the same kind of foundation as the said monument except that the depth of said foundation is to be two feet.

"The said Stratmeyer guarantees that the stone used in said job will be the best 'Barre granite,' and that the same will not develop any defects or spots within ten years after the erection thereof.

"Said job to be completed by May 30, 1916, if possible, and in any event not later than August 1, 1916.

"The said job is to be paid for as soon as completed in accordance with the terms of this contract, by the said Hoyt paying to the said Stratmeyer the sum of six hundred dollars."

Plaintiff claims that the provision in said contract requiring the foundation to be made of crushed rock or screened stone was modified by mutual consent, allowing the plaintiff to substitute some crushed cement, taken from cement sidewalks, for the crushed rock or screened stone.

This action is brought to recover of the defendant the amount specified in said written agreement, on the theory that plaintiff has performed the contract on his part, as written and modified.

The answer of the defendant denies that plaintiff has performed said contract, or that defendant has ever accepted said contract as performed, and denies that the defendant is indebted to the plaintiff in any amount.

Upon the issues thus tendered, the cause was tried to a jury, and a verdict returned for the plaintiff for the full amount agreed in said contract to be paid. Judgment being entered upon the verdict, defendant appeals.

In so far as the defendant bases a right to reversal upon alleged errors committed by the court in its instructions, we have to say that Section 3705-a, Code Supplement, 1913, was in force at the time of the trial. This section, speaking of instructions, says:

"All objections or exceptions thereto must be made before the instructions are read to the jury and must point out the grounds thereof specifically and with reasonable exactness."

We are limited, therefore, in our consideration to those instructions to which exceptions were taken, as provided in the statute.

Before the instructions were read, they were submitted to counsel, and certain exceptions taken only to Instructions 2, 3, 4, 5, and 5 1/2. In the motion for a new trial, error is urged as to other instructions; but, as there is no showing in the motion that the errors complained of were not discovered before they were read to the jury, such alleged errors cannot now be considered, for the reason that the statute specifically says that other objections or exceptions shall not be considered by the trial court upon a motion for a new trial, or by the Supreme Court on appeal, not made as provided therein.

In the second instruction objected to and now complained of, the court said:

"The claim of the defendant is that the plaintiff failed to perform his contract in four different particulars: (1) That the die on said monument was one-half inch thicker than the Cummins monument. (2) That the carving on said monument was an eighth of an inch less in depth than that on the Cummins monument. (3) That the base of said monument was not of the same height or thickness as the Cummins monument. (4) That the foundation was not constructed in compliance with the terms of the contract, in that the crushed sidewalk concrete and rock was used, instead of material provided in the contract.

"As to the first three complaints of the defendant, you are instructed that, if they substantially conform to the requirements of the contract, as hereinafter explained, then defendant cannot avail himself of such matters as a defense, and he cannot excuse his failure to pay by reason of such matters."

In the third instruction complained of, the court explains what is meant by substantial compliance, and says:

"It is the law that, where one contracts for the erection of a certain structure, he is entitled to have it erected in conformity with the provisions of his contract; but, in the application of this rule, the law requires only a substantial compliance therewith. By the use of this term, 'substantial compliance,' you are to understand that it does not require absolute accuracy. Slight variations or deviations from the contract as are inadvertent or unintentional, and not due to bad faith, and which in no way impair the structure as a whole, and in no way affect its symmetry, general appearance, or usefulness, are excusable; and, as applied to this case, if the defects complained of are only slight, and in no way detract from the general appearance, symmetry, and style of said monument, or impair the structure as a whole, and the plaintiff acted in good faith in relation thereto, then defendant cannot complain of said defects. But, on the other hand, if the variations from the terms of the contract are not of a slight nature, or if, in any way, affect the structure as a whole, its general appearance, symmetry, or style, or its use for the purpose for which it was intended, or if, in making said changes, the plaintiff did not act in good faith, then your verdict herein should be for the defendant."

In the fifth instruction, the court said:

"It is one of the claims of the defendant that the base stone for said monument is not of the dimensions provided in the contract, and that the same lacks two inches in thickness of being of the same dimension as the Cummins monument. If you find this is true, and in addition thereto you find that this in any way impaired the structure as a whole, or in any way detracts from the general appearance symmetry, or style of said...