Walter v. Huggins

• Decision Date: 27 May 1912
• Citation: 148 S.W. 148,164 Mo.App. 69
• Parties: H. J. WALTER, Appellant, v. GEORGE HUGGINS and the MIDLAND REALTY COMPANY, Respondents
• Court: Kansas Court of Appeals

148 S.W. 148

164 Mo.App. 69

H. J. WALTER, Appellant, v. GEORGE HUGGINS and the MIDLAND REALTY COMPANY, Respondents

Court of Appeals of Missouri, Kansas City

May 27, 1912

Appeal from Jackson Circuit Court.--Hon. James E. Goodrich, Judge.

AFFIRMED.

Judgment affirmed.

McCune Harding, Brown & Murphy for appellant.

Where work is improperly done under a building contract and the owner, with knowledge of the defect, takes possession of and uses the building, without waiver, the amount of damages would be the difference between the value of the work as done and as it should have been done. This is the equitable rule and no other ought to prevail, because it would be unreasonable to permit the owner, after knowledge of the defective work, to use it so long as it served any good purpose and then compel the builder to pay him for entirely new work. Marsh v. Richards, 29 Mo. 105; Wright v. Sanderson, 20 Mo.App. 534; Spink v. Mueller, 77 Mo.App. 94; Surety Co. v. Woods, 103 F. 745.

Cowherd Ingraham, Durham & Morse for respondents.

(1) Where there has been a breach of a building contract, either in materials or method of construction, the measure of damages is the sum which will reasonably have to be expended to make the work conform to the contract. Haysler v Owen, 61 Mo. 270; Hurt v. Hahn, 61 Mo. 496; Spink v. Mueller, 77 Mo.App. 85; McCormick v. Lynch, 69 Mo.App. 524; Fairbanks v. DeLissa, 36 Mo.App. 711; Fletcher v. Mfg. Co., 35 Mo.App. 321; Wright v. Sanderson, 20 Mo.App. 534; Simons v. Wittmann, 113 Mo.App. 357; Mfg. Co. v. Phelps, 130 U.S. 537; King v. Nichols & Co., 53 Minn. 453; White v. McLaren, 151 Mass. 553; Danforth v. Freeman, 69 N.H. 466; Sutherland on Damages (3 Ed.), sec. 699. (2) The owner or employer can bring suit without completing the contract or finishing the work and can recover the expense necessary to perform the work which the contractor neglected to do. Simons v. Wittmann, 113 Mo.App. 357; Sutherland on Damages (3 Ed.), sec. 699.

OPINION

JOHNSON, J.

This is an action to enforce a mechanics' lien. Plaintiff, as subcontractor, lathed and plastered a building erected on the premises of the defendant Midland Realty Company. Defendant Huggins was the original contractor. One of the defenses raised by the pleadings is that the work was not done according to the plans and specifications as required by the contract. The cause was sent to a referee who heard the evidence and reported his findings of fact and conclusions of law in which he found that the work was not done by plaintiff in compliance with the plans and specifications; that the reasonable cost of making it conform to the contract would be $ 800, but that since the defendant owner had deducted only $ 500 from the contract price as compensation for the damages sustained in consequence of plaintiff's breach, the defendant contractor should be allowed damages only in that sum on his counterclaim. Plaintiff filed exceptions to the report of the referee which, so far as they related to the item of damages we have mentioned, were overruled and judgment was rendered for plaintiff for the value of the lathing and plastering, less the sum of $ 500 allowed on the counterclaim. Plaintiff appealed.

The defect in the plastering was in the workmanship. It was left uneven and "wavy" on the surface. The contract required plaintiff to do the job in a workmanlike manner and to the satisfaction of the architect. The finding of the referee and trial court is that the job was not done in such manner and it appears the architect refused to accept it. The owner purposed renting the building and it was occupied by tenants as soon as completed. It is conceded the owner sustained no loss of rentals on account of the defect and it does not appear that the plastering will be any less durable than it would have been had it been finished in a workmanlike manner, i. e., with a smooth and even surface. Over the objections of plaintiff, defendant was allowed to introduce evidence tending to show that in order to make the work conform to the contract it would be necessary to remove substantially all of the finishing coat and replace it and that the reasonable cost of such work would be about $ 800.

Defendant also offered to show by a competent witness "the difference in the value of that building with the plasterer's job in the condition it was left by Mr. Walter and what would be the value of it had the plastering been first-class and the best of its kind called for by the specifications." Plaintiff objected on the ground that such evidence is irrelevant and immaterial and the objection was sustained by the referee. The defendant owner occupied the building by its tenants from the date of its completion to the date of the trial, a period of about two years, and has used the plastering in the condition left by plaintiff. The subject of controversy is the allowance of damages in the sum of $ 500 on the counterclaim and the difference between the parties is over the rule that should be used in measuring such damages. The rule employed by the referee and trial court and expressed in the judgment allows defendants the reasonable cost of removing the defective work and replacing it with plastering that would conform to the plans and specifications.

This is on the theory that the owner of the building has a right to require that it be built by the contractor according to the terms of the contract and that where any part of the work is in defect of the contract the owner may repudiate it and have it replaced at the cost of the delinquent contractor. The soundness of this rule cannot be questioned in instances where the owner, insisting on an adherence to the terms of the contract, acts seasonably in having the defective work removed and replaced. In such cases he is entitled to compensation for his direct and consequential damages resulting from the breach of contract. But the applicability of the rule of which we are speaking to cases such as the present where the owner, without waiving the contract or acquiescing in its deficient performance takes possession of the building and by long continued use evinces a purpose to use work defectively performed as long as it may be used, is a serious question that calls for thorough investigation and analysis.

The rule contended for by plaintiff thus is stated in the brief of his counsel: "Where work is improperly done under a building contract and the owner, with knowledge of the defect, takes possession of and uses the building without waiver, the amount of damages would be the difference between the value of the work as done and as it should have been done. This is the equitable rule and no other ought to prevail, because it would be unreasonable to permit the owner, after knowledge of the defective work, to use it so long as it served any good purpose and then compel the builder to pay him for entirely new work."

In Marsh v. Richards, 29 Mo. 99, the contract called for pressed brick in the front of the building and the contractor used a different kind of brick. The Supreme Court held: "In such cases, although the work has not been done within the stipulated time nor in the manner or with the materials required by the terms of the contract, he who performed the work may recover what it is reasonably worth to the owner, not exceeding the contract price. When work is to be performed with a specified material, or in a particular manner, for a price agreed upon, and which is favorable to him who has the work performed, the contractor cannot, by violating his contract, place himself in a better situation than if he has complied with his undertaking. The terms on which it was proposed to do the work may have been the inducement to the contract, and to permit the contractor to violate his contract and to recover the full value of his labor and materials would be encouraging dishonesty and unfair dealing. In such cases, the measure of damages would seem to be justly arrived at by the statement, that if the work, when done under the contract and in pursuance to its terms, is worth the price agreed upon, what is the work worth, done as it is, proportionally to the price fixed by the contract? In this way, he who has contracted for the work will retain the advantage he had a right to secure to himself in fixing the price of the work, and of which the contractor cannot deprive him by his own act in violating his undertaking."

In Wright v. Sanderson, 20 Mo.App. 534, the foundation wall was not built in accordance with the terms of the contract and was made to conform to the contract by the owner. We held that "the measure of damages is the sum which it would reasonably take to make the foundation wall such as the defendants contracted to build. And this is so whether or not the plaintiff (the owner) had expended said sum or in case he had expended said sum for said purpose, without regard to what had induced him to do so." We were guided in this expression by the opinion of the Supreme Court in Haysler v. Owen, 61 Mo. 270, to which we referred. In the Haysler case a roof defectively constructed was the subject of contention. The jury were instructed that the measure of damages was "the difference between the value of the roof agreed to be put on and the one actually put on." This instruction was approved in the opinion:

"The rule as to the measure of damages laid down by the court is a correct one as to building contracts, in all cases where the contract price is a fair valuation for the work and it has been completed in general conformity to the requirements of the contract, but has been defectively executed in some particulars, and the suit is for the contract price, and defendant does not seek to recover any special consequential...