Van Den Hoek v. Bradwisch

• Decision Date: 29 December 1978
• Docket Number: No. 12287,12287
• Citation: 273 N.W.2d 152
• Parties: Laverne VAN DEN HOEK, Plaintiff and Respondent, v. Robert BRADWISCH, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 152

273 N.W.2d 152

Laverne VAN DEN HOEK, Plaintiff and Respondent, v. Robert BRADWISCH, Defendant and Appellant.

No. 12287.

Supreme Court of South Dakota.

Dec. 29, 1978.

Douglas Luebke, of Horstman, Braley & Luebke, Corsica, for plaintiff and respondent.

Charles Rick Johnson, of Johnson, Johnson & Eklund, Gregory, for defendant and appellant.

PORTER, Justice.

CASE SUMMARY

Plaintiff-respondent Van Den Hoek (contractor) brought this action against defendant-appellant Bradwisch (owner), seeking to recover the balance due on a contract to construct a house. The trial court entered a judgment in favor of the contractor for $5,650.00 based on a jury verdict in that amount. We hold that the trial court's instructions allowed the jury to give the contractor damages based on the contract price, whether the contractor substantially performed the contract or not. Thus the jury was not required to determine the question of substantial performance. Since this critical factual question remains undetermined, we reverse the judgment and remand for a new trial.

FACTS

The owner and the contractor entered into a contract whereby the contractor agreed to construct a house in Stickney. The contractor prepared a written agreement in April, 1973, and the parties met in May of the same year to agree on details. The owner expressed a desire to have the house completed by August 1, 1973, and the contractor said he would make an effort to complete the house as soon as possible. There was, however, no completion date in the written contract.

The contractor began construction of the house in May, 1973. During construction, the parties discussed various additions, and although the evidence conflicted, the contractor testified that the owner requested additions with a value of over $2,000.00. The parties apparently did not agree on a price for these additions to the contract.

The house was enclosed by July, 1973, and inside work continued. In July or August, the owner became dissatisfied with the pace of the work. He testified that the contractor left sometime in July or August and did not get back to the project until September 26, 1973. The owner moved into the house on October 1, 1973, even though the furnace was not hooked up and the plumbing was only partially completed.

The testimony of the parties conflicts as to occurrences after October 1, 1973. The contractor testified that he tried to come back to complete inside work on November 20, 1973, and was refused admission to the house. The owner testified that he became aware of certain construction and plumbing defects in November or December, 1973, and called a state plumbing inspector. The inspector's report is a part of the record and lists numerous violations of state plumbing regulations. The owner testified further that he never refused admission to the contractor in 1973, and that the contractor did some plumbing on December 8, 1973. The contractor said he had no recollection of being at the owner's house on December 8, 1973.

Although the parties did talk with one another during the next few months, the contractor did not attempt to complete any further work until March, 1974. By this time, mechanics liens had been filed against the property by suppliers of materials whom the contractor had not paid. The owner testified that he told the contractor to have the liens discharged before he did any further work on the house. The contractor testified that the owner refused to let him work on the house after March, 1974. He also claimed that the owner converted tools and materials left at the site.

The owner claims that the construction was defective in a number of particulars. The greatest fault is said to be in the plumbing. The plumbing defects are set forth in the state plumbing inspector's report. The owner hired a plumber to correct some of these defects, but most of them remained uncorrected to the date of trial, even though the owner and his family were living in the house. The owner also claims that the electrical wiring was incomplete and that he spent nearly $400.00 to complete it. Numerous other defects and unfinished work are also claimed.

The contractor claims that the work was substantially completed, and that the owner prevented him from completing the rest and from correcting defects in original construction.

The jury returned a verdict of $5,650.00 in favor of the contractor. The trial court entered judgment in this amount. The owner appeals.

ISSUE

The issue dispositive of this appeal is: Do the instructions adequately set out the rule of substantial performance of construction contracts as it relates to the measures of damages applicable under that rule? We conclude that the instructions misdirected the jury.

DECISION

We have long recognized the rule of substantial performance of building contracts. We first stated the rule in Aldrich v. Wilmarth, 3 S.D. 523, 54 N.W. 811 (1893): "But where the builders have in good faith Intended to and Have substantially complied with their contract, although there may be Slight defects caused by inadvertence or unintentional omissions, they may recover the contract price, less the damages sustained on account of such defects." (Emphasis supplied). The other cases recognizing this doctrine are collected in Dixon v. Nelson, 79 S.D. 44, 48, 107 N.W.2d 505, 507 (1961).

As we said in Dixon supra, no absolute criteria prevail whereby the courts determine whether performance is sufficient to invoke this doctrine. In Hulst v. Benevolent Hall Ass'n, 9 S.D. 144, 68 N.W. 200 (1896), we held that defects not easily remedied, and not caused by inadvertence, were sufficient to...