Wetzstein v. Hemstreet

• Citation: 276 Or. 623,555 P.2d 1243
• Parties: Arnold L. WETZSTEIN and Alida F. Wetzstein, Appellants, v. Bob L. HEMSTREET, Respondent.
• Decision Date: 12 November 1976
• Court: Supreme Court of Oregon

Page 1243

555 P.2d 1243

276 Or. 623

Arnold L. WETZSTEIN and Alida F. Wetzstein, Appellants, v. Bob L. HEMSTREET, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted Sept. 10, 1976.

Decided Nov. 12, 1976.

Norman K. Winslow, Salem, argued the cause and filed briefs for appellants.

William E. Hurley of Bernard, Hurley, Hodges & Kneeland, Portland, argued the cause and filed a brief for respondent.

Before DENECKE, C.J., and TONGUE, BRYSON and LENT, JJ.

BRYSON, Justice.

Plaintiffs purchased an unfinished home on 20 acres from the defendant builder. The agreement provided that defendant would complete the house as to work enumerated in exhibits attached thereto. The agreement also provided, 'spring well flow to be not less than 5 gallon(s) per minute' and 'buyer to give sixty (60) days notice prior to occupancy to permit seller to complete home.'

Plaintiff's complaint seeks damages for the reasonable cost of completing the residence and for the alleged breach of warranty with reference to the water supply.

The trial court, sitting without a jury, found 'the parties agreed that defendant would not, himself, complete the residence; but he would pay, pursuant to 1972 prices, the amount necessary to complete the residence' and that '(t)he amount necessary to complete the residence is the sum of $2,689.50, which sum defendant agreed to pay' and that plaintiffs presented no substantial evidence to support their allegations of breach of warranty. The defendant's answer to the second amended complaint alleged:

'When plaintiffs requested that the structure be completed, the sum required at 1972 prices was the sum of $2,445. To this sum, defendant added a miscellaneous contingency provision of 10 percent and offered to plaintiffs to pay the sum of $2,689.50.'

The plaintiffs assert that

'The trial court erred in denying the Plaintiffs any recovery for the 'reasonable cost of completion' of the residence purchased by them, in excess of the amount that the Defendant conceded would be necessary for completion.'

This being an action at law, we assume that this assignment of error contends that there was no substantial evidence to support the trial court's finding on this issue.

The sale of the property was consumated in July, 1972, and plaintiffs were to give 60 days' notice to defendant to complete the house. At the time of sale, plaintiffs lived in California and were unable to move to Oregon until the middle of April, 1974. In the interim the house remained vacant and this fact caused most of the problems, culminating in the present litigation. The defendant testified:

'* * * I would rather just finish it right up. I had all my subcontractors lined up, everybody was ready to go. He asked me for an additional 60 days, he was afraid of vandalism. He was afraid somebody would break into his house, so he, that was the preference of his, not mine, by any means.'

By letter of March 19, 1974, plaintiffs wrote defendant from California as follows:

'I will be in the area (Sheridan) on/about April 5th to further develop the property in anticipation of a move, hopefully, midsummer.

'* * *.'

On June 11, 1974, defendant wrote plaintiffs (then in Sheridan, Oregon), 'I am ready and willing to complete the job after being notified of the 60 days so agreed. * * * Most of your items I agree to, but not all.'

The evidence shows that after the above exchanged of correspondence both parties agreed that the plaintiffs would complete the house and that defendant would pay them, pursuant to 1972 prices, the required amount of money to accomplish the completion. On July 22, 1974, defendant provided plaintiffs with a list of the items he believed would complete the house under their modified agreement, accompanied by the estimated 1972 price for completion of $2.445. To this he added miscellaneous contingencies of 10% In the amount of $244.50 for a total of $2.689.50. Defendant's letter to plaintiffs offered to pay plaintiffs this sum in complete settlement of his obligations under the modified agreement. The plaintiffs refused the offer of settlement and filed the within action. Plaintiff Arnold Wetzstein, on cross-examination, conceded that his appraiser had estimated that the house could be completed for $2,400 to $2,500 at 1975 prices and that this figure was later increased to $3,000 at plaintiffs' request. He also conceded that the work could be done at least $300 less in 1972 than in October, 1975, the date of the appraisal. Defendant, a builder with considerable experience, testified that the house could be completed for $2,445 at 1972 prices. This figure included $2,313 in bids received by defendant from subcontractors in 1972, when the thought the house was to be completed, and $132 for repairs and additions which he felt were not contemplated by the original agreement.

The trial court arrived at the sum of $2,689.50 as the 1972 cost of completing the house. We have reviewed all of the testimony and find there is substantial evidence to support the trial court's findings in this respect.

Plaintiffs next contend that the trial court erred in denying the plaintiffs any 'damages based on the express agreement that the spring, which was the water supply for the residence purchased by the Plaintiffs, would produce not less than five gallons per minute.' Plaintiffs offered no direct evidence revealing the water's rate of flow at the agreement date of July, 1972. The rate of flow was to be measured at the date of the agreement. The flow test conducted by plaintiffs, which revealed slightly less than the amount of water warranted, was conducted in 1975. The source of water for the tank and pump was a spring on property adjacent to the 20 acres purchased by plaintiffs, to which they were given an easement. There is testimony that the flow of water from the spring in 1975 was reduced by disuse and by plaintiffs' general failure to maintain the area and keep it clean around the spring. Defendant testified that he had used the water from the pump house to drink and for watering the trees;...