Sward v. Nash

• Decision Date: 20 January 1950
• Docket Number: No. 34941,34941
• Parties: SWARD v. NASH et al.
• Court: Minnesota Supreme Court

Page 828

40 N.W.2d 828

230 Minn. 100

SWARD v. NASH et al.

No. 34941.

Supreme Court of Minnesota.

Jan. 20, 1950.

Syllabus by the Court.

1. It is not error for a trial judge to assume in his charge the existence of facts which, in view of the conclusiveness of the evidence before the court, present no issue for the jury. The court correctly charged that the building contract in suit had been substantially performed.

2. Loss of a specific opportunity to receive an increase in rental caused by delay in completion of a building contract is a special damage which must be shown to be within the contemplation of the contracting parties. A contractor who substantially performs a contract which does not contemplate the erection of a finished rentable building is not liable for an increase in rental lost because of delay in the final completion of the building.

3. Where a witness testified without objection that the correction of defects pleaded as the basis of a counterclaim would cost more than the amount claimed as damages therein, but no intent to litigate issues beyond the pleadings appears in the record, the trial court's refusal to permit an amendment of the counterclaim was not an abuse of discretion.

4. A new trial on the basis of surprise was properly denied where the trial court's failure to observe a previous agreement to place a second form of verdict before the jury did not have the effect of denying counsel an opportunity to argue a proposition of fact to the jury.

5. The charge adequately submitted the issues to the jury.

Strong, Strong & Tully, Minneapolis, for appellant.

O. A. Brecke, Minneapolis, for respondent.

FRANK T. GALLAGHER, Justice.

Plaintiff is a building contractor. He sought a mechanic's lien in the amount of $1,793.95 for services and material furnished defendant Alice C. Nash in the erection of a commercial garage. Defendant Nash (hereinafter referred to as defendant) disputed the terms of the oral contract under which plaintiff claimed a lien and asserted that plaintiff was entitled to no lien because he claimed more than was due him; that the work was defective and not in accord with the terms and conditions of the contract; and that plaintiff left the work voluntarily before completion of the building in violation of the contract. Defendant counterclaimed for loss of additional rent from the new building because of plaintiff's alleged failure to complete it on time and for sums expended to correct defects in the building caused by plaintiff's faulty workmanship. The trial resulted in findings and in a verdict for plaintiff for $1,500. Defendant's motion for a new trial was denied, and she appeals from the judgment entered pursuant to the findings and verdict.

Defendant assigns several errors, some of which do not require extended discussion.

1. The trial court charged that plaintiff had substantially performed the contract in suit. Defendant contends that this was an issue of fact for the jury, and, further, that this was an adoption of plaintiff's view of the terms of the contract and a determination that plaintiff had not intentionally violated his contract; that the latter facts were also for the jury's determination; and that, because the instruction assumed their existence, it was erroneous, citing Larkin v. City of Minneapolis, 112 Minn. 311, 127 N.W. 1129.

We believe that the charge did assume the existence of the facts set out. The question is whether decision of them should have been left to the jury. The exact terms of the contract being in dispute, the court's direction compels the jury to the conclusion as a matter of law that there was substantial performance of any contract which the facts warranted them in finding. The rule in this state, in the case of building contracts, is that if the facts show that a contractor has substantially performed his contract, although there were minor defects in his work, he is entitled to recover the contract price, less the sum necessary to cure the defects. Leeds v. Little, 42 Minn. 414, 44 N.W. 309; Snider v. Peters Home Bldg. Co., 139 Minn. 413, 167 N.W. 108; McClure v. Village of Browns Valley, 143 Minn. 339, 173 N.W. 672, 5 A.L.R. 1168; Independent School Dist. No. 35, St. Louis County v. A. Hedenberg & Co. Inc., 214 Minn. 82, 7 N.W.2d 511. However, the doctrine of substantial performance does not apply when the omissions or departures from the contract are intentional or so substantial as not to be capable of remedy, so that even though the owner received an allowance out of the contract price he still would not receive what he contracted for. Elliott v. Caldwell, 43 Minn. 357, 45 N.W. 845, 9 L.R.A. 52. If the contract is entire and performance is wilfully abandoned before completion, there can be no recovery on the contract or in Quantum meruit. Johnson v. Fehsefeldt, 106 Minn. 202, 118 N.W. 797, 20 L.R.A., N.S., 1069; Groves v. John Wunder Co., 205 Minn. 163, 286 N.W. 235, 123 A.L.R. 502; Ylijarvi v. Brockphaler, 213 Minn. 385, 7 N.W.2d 314.

Assuming the contract here to be entire, it is apparent that if there was evidence which would permit a jury to find that plaintiff wilfully and without excuse abandoned the job before it reached the state of completion required by any contract which may have existed between the parties then the charge did assume a fact in issue and there must be a reversal. See, Burnett v. Great Northern Ry. Co., 76 Minn. 461, 79 N.W. 523; Wiester v. Kaufer, 188 Minn. 341, 247 N.W. 237; 6 Dunnell, Dig. § 9781, and cases under note 37. However, it is our opinion from an examination of the record here that no such issue was presented to the jury, as the record indicates to us a substantial performance, under our rules, of any contract which the testimony might have permitted the jury to find. We do not consider the court's instruction on this point as reversible error.

The exact terms of the contract are in dispute. Plaintiff and his wife testified that the agreement was made orally at plaintiff's home on December 18, 1945, that he was to work only until April 1, 1946; that he was to receive a $750 flat fee for supervision of the work and, in addition, was to receive $75 per week as a working foreman; that his work was to involve only the structure proper and did not include plumbing, heating, and electrical construction; and that defendant was to furnish the materials for the job. Defendant's agent, D. P. Blomquist, who acted for defendant in all matters involved in this case, denied that there was any agreement for weekly compensation. However, this issue was left to the jury, who allowed plaintiff weekly compensation in addition to the $750. In connection with the amount of work contemplated by the contract, Blomquist testified that the understanding was that the building could be Substantially completed and that at the time the contract was made he told plaintiff that he could 'see most of the materials to substantially complete that building.' When asked what state of completion the building had reached when plaintiff left the job, Blomquist testified that the doors, windows, interior and electrical work, floor, and plumbing were incomplete. However, on cross-examination, he indicated that the plumbing and electrical work was to be done by others. It appears that plaintiff was not a plumber or an electrician. Defendant does not contradict plaintiff's contention that the original agreement did not require the construction of a new floor and that the old floor was to be used. Accepting Blomquist's evidence in its entirety, it appears that when plaintiff left the work on March 29, 1946, he had completed all the exterior work with which he was chargeable, except for installation of sash, doors, and windows.

There is no direct testimony as to how much of the interior finishing the contract bound plaintiff to do, but an examination of the record indicates to us that only the structural part was involved, and that was substantially completed. The undisputed evidence shows that the carpenters, who with the masons and laborers constituted the force which plaintiff was employed to supervise, were laid off by defendant on April 4, 1946, very shortly after plaintiff ceased work. It appears that at that time the structure, as such, was substantially completed. Laying aside the evidence of failure by Blomquist to procure needed materials, with resulting unavoidable delay of plaintiff's operations, it appears that the structure proper, with the exception of some doors and windows, was complete at the time plaintiff left the job. Inasmuch as Blomquist characterized the agreement as one to 'substantially' complete the building, we feel justified in concluding as a matter of law, setting aside minor defects which we shall consider later, that plaintiff had substantially completed any contract which the evidence warranted the jury in finding and that there was no intentional and unexcused abandonment of the work. While defendant alleged that the workmanship was in several respects defective, she does not contend that the defects and omissions were intentional. A reading of the record convinces us that the trial court was warranted in instructing the jury that the defects were not such as to prevent substantial performance. It properly instructed the jury that they were to deduct the cost of correcting the defects from any verdict that they might find for plaintiff.

2. Defendant complains of exclusion of evidence which, according to her offer of proof, would show that the existing premises, which had been wrecked to make way for the new building, had been rented for $65 a month; that the agreed rental was to be increased to $300 monthly upon completion of the new building; and that, by reason of delays caused by plaintiff's failure to complete, this rental was not received until January 1, 1947.

It might be pointed out first that, although plaintiff made objection to the evidence, it was never...