Thomas v. Warrenburg

• Decision Date: 06 June 1914
• Docket Number: 18,876
• Citation: 92 Kan. 576,141 P. 255
• Court: Kansas Supreme Court
• Parties: JOSEPHINE B. THOMAS, doing business as J. Thomas & Son, Appellant, v. R. H. WARRENBURG et al., Appellees

141 P. 255

92 Kan. 576

JOSEPHINE B. THOMAS, doing business as J. Thomas & Son, Appellant, v. R. H. WARRENBURG et al., Appellees

No. 18,876

Supreme Court of Kansas

June 6, 1914

Decided January, 1914.

Appeal from Greenwood district court; ALLISON T. AYRES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ERRONEOUS INSTRUCTIONS -- Rendered Harmless by Verdict. Ordinarily an instruction which impliedly justifies a larger verdict than the law or the evidence warrants becomes harmless when it appears that the verdict returned was much less than it might have been under the evidence and the law correctly stated.

2. EXPRESS WARRANTY--Instructions. When the evidence clearly shows an express warranty of material purchased, an instruction as to an implied warranty may be deemed immaterial.

3. DEFECTIVE BUILDING MATERIAL--Measure of Owner's Damages. A mere defect in a building which can be remedied by repair entitles the owner to the cost of such repair, and he is not confined to a recovery from the contractor of the difference between the value of the building as constructed and its value as contracted for.

Clad Hamilton, Clay Hamilton, both of Topeka, and R. P. Kelley, of Eureka, for the appellant.

Howard J. Hodgson, S. F. Wicker, and Gordon A. Badger, all of Eureka, for the appellees.

OPINION

WEST, J.

The plaintiff sued to recover $ 402.92 and interest claimed to be due on a bill for lumber and other building material. The defendant, R. H. Warrenburg, denied the indebtedness, and by way of cross-petition set up a counterclaim, alleging that he purchased the material at an agreed sum, and that the same was to be of first-class quality, and was impliedly and expressly guaranteed to be of such quality and suitable for the purpose for which it was bought; that the plaster, sand, lime, cement and lath furnished were of inferior quality and unsuitable for the desired purpose, the defects therein being latent and not discoverable by the defendant until after the material had been placed in the building, the result being that after the completion of the house "the plaster upon the walls and ceiling of each room began to expand, and vast number of spots in the walls and ceiling were blown off, leaving an indenture in the wall and scattered the plastering and sand and cement upon the floors, which said small holes in the wall vary in size from very small to the size of a silver dollar, leaving the walls and ceiling in a worthless and useless condition and entirely destroying the body and symmetry of the walls and ceiling in the various rooms. That said walls were decorated and a large amount of finished work done upon the casing and frames, and that by reason of the popping out and expansion of this large number of holes and spots in the walls and ceiling of the rooms, the finished work of said rooms as herein set out were badly injured and destroyed." It was alleged that the defendant was thus damaged in the sum of $ 589, for which he asked judgment over the amount which the plaintiff claimed to be due.

There appears to have been no dispute about the balance sued for, and the jury returned a verdict for the plaintiff for $ 100, which was in effect allowing the defendant $ 302.92 and interest as damages to be credited on the bill. The plaintiff appeals and complains that the amount allowed the defendant was excessive; that there was no implied warranty, and the court in its instruction applied the wrong measure of damages. One witness testified that to replaster, the casing and the woodwork would have to be taken off and the finished floors protected, which he estimated would cost from $ 225 to $ 330. Another stated that it would cost about $ 385 to refinish the walls. ...