Thompson Const. Co. v. Schroyer, 40106
| Decision Date | 09 June 1956 |
| Docket Number | No. 40106,40106 |
| Citation | 179 Kan. 720,298 P.2d 239 |
| Parties | THOMPSON CONSTRUCTION COMPANY, Appellant, v. John E. SCHROYER, Appellee and Cross-Appellant; Salina Concrete Products, Inc., Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Where there are errors or omissions in the construction of a building, which can be remedied by repair, the measure of damages is the cost of such repair rather than the difference between the value of the building as constructed and that contracted for, and in an action against the owner to foreclose a mechanic's lien, he may be allowed reasonable and necessary expense to make the building conform to the contract upon his cross-petition.
2. Plaintiff contracted to build a filling station with a six-inch concrete driveway around part of it. The night following the pouring of part of the concrete driveway there was a sudden drop in temperature, which resulted in the freezing, and later disintegration, of the concrete so that the driveway needed repair. No provision was made in the contract to relieve plaintiff from the effects of frost, storms or like casualties, it is held: That the loss caused by the freezing of the concrete falls upon the plaintiff and the proper measure of damages, to be deducted from the amount of his lien, is the reasonable and necessary expense of removing and repouring the full six-inch concrete driveway, which was frozen.
3. The record in an action to foreclose a mechanic's lien examined and held: The trial court did not err (1) in reducing the amount of plaintiff's mechanic's lien as more fully set forth in the opinion, and (2) in entering judgment against defendant owner of the real estate for the full amount of the claim of Salina Concrete Products, Inc.
H. G. Engleman, Salina, argued the cause, and E. S. Hampton, H. H. Dunham, Jr., John Q. Royce, C. Stanley Nelson and Jack N. Stewart, Salina, were with him on the briefs for appellant, and appellee Salina Concrete Products, Inc.
Ray McCombs, Ness City, argued the cause and was on the briefs for appellee and cross-appellant John E. Schroyer.
This is an action to foreclose a mechanic's lien. The trial was by the court, which resulted in a judgment in favor of plaintiff for a sum less than that alleged to be due, and plaintiff has appealed. Defendant, John E. Schroyer, has cross-appealed from the judgment in favor of plaintiff, and from a judgment in favor of defendant, Salina Concrete Products, Inc., decreeing foreclosure of its mechanic's lien.
The appeal and cross-appeal arise out of the following: On August 27, 1953, Thompson Construction Company (hereafter referred to as appellant) entered into a written contract with John E. Schroyer (hereafter referred to as Schroyer) to construct a filling station on vacant lots owned by Schroyer in Ness City. Appellant commenced the erection of the filling station and the Salina Concrete Products, Inc. (hereafter referred to as Products, Inc.) furnished, in a large part, cement blocks and other material for the construction of the station. Controversy arose between the parties with respect to whether the station was being constructed in conformity with plans and specifications agreed upon in the contract. Appellant completed its work under the contract on January 16, 1954. The filling station was acceptable to Schroyer's lessee, Socony Vacuum Oil Company, but not to Schroyer as the owner. When Products, Inc., was not paid for the materials furnished Schroyer, it filed its verified statement for a mechanic's lien on January 30, 1954. Appellant filed its verified statement for a mechanic's lien on March 27, 1954. On June 18, 1954, appellant instituted this action to foreclose its mechanic's lien. It made Schroyer, Products, Inc., and others, parties defendant. Products, Inc., filed its answer and cross-petition to foreclose its mechanic's lien.
Schroyer filed an answer to appellant's petition, and also filed a cross-petition. His answer admitted ownership of the real estate, subject to a mortgage and to a lease in favor of Socony Vacuum Oil Company; and, the execution of the contract, but he specifically denied any indebtedness to appellant. He affirmatively alleged appellant failed and neglected to follow the plans and specifications agreed upon to construct the building; that there were numerous errors in the construction of the building; that he had repeatedly requested appellant to correct such errors caused by appellant's fault; that on November 7, 1953, he paid appellant $1,000 and refused to make additional payments until he was furnished separate itemized time sheets for work being done for actual construction and for correction of errors in construction due to appellant's fault; that he was never furnished such time sheets; that appellant never completed such filling station, but abandoned work thereon on or about November 18, 1954; that prior to such abandonment, appellant's work on such station was defective and contrary to good building practices; and, that after such abandonment, appellant rendered no statement or bill to Schroyer except a copy of the mechanic's lien statement.
The following is a summary of the condition of the building on November 18, 1954, as alleged by Schroyer: That the northeast corner of the building was out of plumb; that a flat roof had been installed whereas the plans and specifications of Socony Vacuum Oil Company called for a four-inch pitch roof with slope to the rear of the building; that the roof was repaired but still leaked; that lintels over the doors were too low; that the overhead doors were required to be cut off two inches to fit the openings; that the window frames were not the frames specified; that electrical aid conduits were not in the walls; that 1,500 to 1,600 square feet of concrete driveway was cracked and crumbling; that the doors were below floor level; that the floor drain was four inches below floor level; that the stucco was peeling off the northeast corner; that the coping around the top of the building was cracked; that the sewer trench was dug too deep; that the shelving had not been installed; that the painting was not finished; that the electrical wiring was not finished according to plans and specifications; and the outside lights were not connected.
Schroyer's cross-petition alleged that pursuant to the contract between appellant and himself, appellant entered upon his property to construct and erect a filling station according to plans and specifications of Socony Vacuum Oil Company; that the real estate was under lease to such oil company, and the construction of a filling station thereon was the basis for the contract between Schroyer and appellant; that appellant did attempt to construct the filling station according to such plans and specifications, but through errors and omissions in construction, some of which were detailed in Schroyer's answer, it was necessary for Schroyer, at his own expense, to correct such errors and defects as could be corrected without further detriment to the building project, and to pay the sum of $880 for extra labor and material; and that he had been permanently damaged in the sum of $10,000 by reason of appellant's errors in construction. The prayer was that Schroyer recover from appellant the sum of $10,880, or in lieu thereof, appellant be required to complete said filling station in accordance with plans and specifications of Socony Vacuum Oil Company as appellant agreed to do. Appellant filed a general reply to the answer and cross-petition of Schroyer, and renewed its prayer for judgment.
The cross-petition of Products, Inc., alleged that pursuant to orders placed by Schroyer it shipped on September 10, 1953, and October 8, 1953, materials of the value of $1,475.50, which were used and consumed in the construction of the filling station on real estate owned by Schroyer, and prayed for foreclosure of its mechanic's lien. Attached to the lien statement were four copies of invoices, each being headed, 'Charge to John E. Schroyer, d/b/a Ness City Lumber Company, also d/b/a Schroyer's, Inc., Ness City, Kansas.'
To this cross-petition Schroyer filed a general denial, and specifically denied he was indebted to Products, Inc., or that it had a valid lien upon the real estate described.
With the issues thus joined, the cause was tried by the court in March, 1954, without a jury. Schroyer demurrer to appellant's evidence, which was overruled. He did not stand on his demurrer but introduced his evidence, and rested.
On May 14, 1955, the trial court filed its findings of fact. Findings 1 and 2 read:
'From plaintiffs' claim, which was reduced by agreement and consent in open court to the sum of $4,739.60, the following items are not allowed and are deducted from such claim:
Leoti Electrical Shop $50.00
Diamond Saw Blade 117.00
Hedlund Electric Co. 129.00
Tabor Plumbing Co. 94.00
reducing plaintiffs' claim to $4,349.60; and upon the answer and cross-petition of John E. Schroyer, the following items of damage sustained by John E. Schroyer are allowed:
(a) 1500 square feet of the East Driveway at $1.10 per sq. ft. $1,650.00
(b) Cost of replacing the flat roof with a 4-inch pitch roof 2,250.00
(c) All other items 300.00
or a total of $4,200.00 in damages sustained by John E. Schroyer, and for which he is entitled to credit as against plaintiffs' total claim, leaving a balance of $149.60 due from the defendant, John E. Schroyer, to plaintiffs, for which plaintiffs have a valid and existing mechanic's lien upon the real estate hereinafter described.
'That Salina Concrete Products, Inc., is entitled to judgment against John E. Schroyer, for materials furnished, in the amount of $799.80, with interest, which judgment is also secured by a valid and existing mechanic's lien upon the real estate hereinafter described.'
Thereafter appellant and Products, Inc., filed timely motions for a new trial. On July 18,...
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