White v. Mitchell

• Citation: 123 Wash. 630,213 P. 10
• Decision Date: 21 February 1923
• Docket Number: 17536.
• Parties: WHITE et al. v. MITCHELL et al.
• Court: United States State Supreme Court of Washington

213 P. 10

123 Wash. 630

WHITE et al. v. MITCHELL et al.

No. 17536.

Supreme Court of Washington

February 21, 1923

Department 1.

Appeal from Superior Court, Pierce County; M. L. Clifford, Judge.

Action by Mary E. White and others against Amos Mitchell and another. From a judgment for plaintiffs in an amount less than claimed and from judgment for defendants, plaintiffs appeal. Reversed, and remanded, with directions.

W. E Gwynn, of Summer, and Remann & Gordon, of Tacoma, for appellants.

A. O Burmeister and J. H. Gordon, both of Tacoma, for respondents.

BRIDGES J.

The plaintiffs, who are sisters, owned a small tract of land near the town of Sumner, in this state, on which they desired to construct a dwelling. The defendants are experienced housebuilders residing in the city of Tacoma. About the 1st of September, 1920, the plaintiffs entered into a contract with the defendants for the construction of such dwelling. This contract was partly in writing and partly oral. There were some drawings and some written specifications. The house was to be a two-story building, of a certain size, and of a certain class of material, and the finishing of the building was to be of a designated kind, and, in general, the construction and finishing work were to be of the same general character as those in a certain dwelling in the city of Tacoma, with which all the parties were acquainted. The house was to rest on a concrete foundation, allowing for a large basement. The contract price was somewhat less than $4,000, and payments were to be made in installments as the work progressed. About the last of the year 1920, the defendants considered the building completed and offered to turn it over to the plaintiffs. At that time all of the contract price had been paid except some $400 or $500. The plaintiffs, believing that the house had not been constructed according to agreement, not only refused to pay the balance of the contract price but brought suit for damages in the sum of $2,500. The court, who tried the case without a jury, allowed plaintiffs damages in the sum of $250, and gave judgment to the defendants for the balance of the contract price. The plaintiffs have appealed.

A reading of the testimony shows quite conclusively that the materials used in the construction of the house were such as the contract provided for, but it also shows that, when the respondents offered to turn the house over as completed, it had at least four material defects: First, there was some poor work which resulted in some of the windows and doors not being properly constructed; the septic tank not being in accordance with the agreement, and other minor defects, all of which for a reasonably small sum could be remedied. Second, the southwest corner of the house was some three or four inches lower than other portions of the house. Third the lower floor of the house was generally uneven and materially out of level. This last condition was caused by the following circumstances: Girders bearing a large portion of the weight of the house ran from each side thereof to the center and rested upon a post, the lower end of which rested upon a concrete slab placed in the bottom of the basement. During construction, this slab broke and thus let the girders sag. In an attempt to remedy this condition, the respondents jacked up the house as best they could, and built a new concrete block to replace the broken one. It was impossible, however, to remedy the matter entirely and make the flooring level, because at that time the roof was on the house, partitions had been built, and the plastering had been done. Fourth, the hardwood floors and interior finish had become soft, raised, uneven, and colored to a material extent.

It satisfactorily appears that, when the concrete was poured, the foundation walls were level and that the sinking at the southwest corner was the result of soft, mushy soil at that point, caused, in at least some part, by the accumulation of water in the basement, and respondents contend they should not be held responsible for the sagging condition of the foundation. It also appears with reasonable satisfaction that, throughout the process of building, from 6 to 16 inches of water stood in the basement and that this condition so softened the earth as to cause the concrete block upon which the girders rested to break and thus cause the floor to sag, and that respondents remedied this defect as best they could by jacking up the house and making a new concrete block. Respondents contend that they cannot be held responsible for the present condition caused by water in the basement making the ground soft and mushy. They also contend that the damage done to the finishing materials was solely because of dampness resulting from the great quantity of water constantly in the basement, and that they ought not to be held responsible for that condition.

On the contrary, the appellants contend that the respondents contracted to construct and turn over the house in a proper condition, and that, if the defects mentioned were caused by soft ground or by the presence of water in the basement, such would not be any excuse.

From the findings made by the trial court, it is somewhat difficult to determine upon what theory he made the plaintiffs an allowance of $250. He finds that while the construction was going on 'certain waters impeded the work and there was then no way known of successfully taking the water from the basement; that they completed the structure, generally speaking, according to the plans and specifications, taking into consideration the obstacles encountered.' We can account for the judgment of the lower court only upon the theory that he concluded that the respondents were not, under the circumstances, responsible for any defects in the house except those which could easily be repaired at small cost. The testimony makes it clear that the $250 allowed by the trial court would not, by any means, make the floor of the house level, and repair the damage done to the interior finish because of the water standing in the basement.

There is nothing in the testimony to show that the soil was of such character as that it was impossible to put down a concrete wall which would not sink, nor is there anything to show that it was impossible to build the house without the presence of great quantities of water constantly standing in the basement. Undoubtedly, by their contract, the respondents impliedly, if not expressly, agreed to construct the house in a reasonably good and workmanlike manner. The mere fact that the ground was soft would not excuse them from the performance of their contract in a proper manner, unless it was of such character it would be impossible to construct a foundation upon it. For all that appears, a wider footing for the concrete basement would have prevented the foundation from sinking. The general rule is that a builder must substantially perform his contract according to its terms and, in the absence of contract governing the matter, he will be excused only by acts of God, impossibility of performance, or acts of the ot...