Wisconsin Red Pressed Brick Co. v. Hood

• Decision Date: 01 February 1897
• Docket Number: Nos. 10,357 - (248).,s. 10,357 - (248).
• Citation: 67 Minn. 329
• Parties: WISCONSIN RED PRESSED BRICK COMPANY v. DAVID HOOD and Others.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

67 Minn. 329

WISCONSIN RED PRESSED BRICK COMPANY v. DAVID HOOD and Others.¹

Nos. 10,357 - (248).

Supreme Court of Minnesota.

February 1, 1897.

Action in the district court for St. Louis county against David Hood, Hurd Refrigerator Company and New Duluth Land Company. From a judgment in favor of plaintiff and from an order, Ensign, J., denying a motion to set aside the judgment, defendant Refrigerator Company appealed. Affirmed.

White & McKeon, for appellant.

Shaw, Cray, Lancaster & Parker, for plaintiff respondent.

Wm. B. Phelps, for respondent Hood.

CANTY, J.

This is the third appeal in this action. See 54 Minn. 543, 56 N. W. 165; 60 Minn. 401, 62 N. W. 550. After the second appeal, the case was again tried before the court, without a jury. The court found that about 80,000 of the brick sold by plaintiff to the contractor Hood —

"Contained a latent or hidden defect, known to plaintiff, which caused them to disintegrate and crumble upon their exposed surfaces, and such defect was not visible or known to the defendants when using said bricks in said buildings, nor when they accepted the same, nor could such defect have been discovered by the use of ordinary means, but could only be determined and developed by exposure in the walls. That, to the extent of 80,000 bricks, said lot of bricks so sold and delivered were not common bricks of good quality, and that the value of said entire lot was and is the sum of $3.50 per thousand, and not $5.50, which difference in value was caused by the hidden or latent defect aforesaid."

On this finding, the court ordered judgment in favor of plaintiff, and against Hood, for the balance due at such rate of $3.50 per thousand, to wit, $258.50, and declared the same a lien on the land of the Hurd Refrigerator Company, and the buildings erected thereon. On certain stipulations made on the trial, the court found that there is due Hood the further sum of $3,416.17, with interest thereon since October 5, 1891, for which a lien was declared on said premises. From the judgment entered thereon, and also from an order refusing to set aside the judgment, the refrigerator company appealed.

1. The bill of exceptions states that it contains all the evidence offered and received having any bearing on the value of the brick.

Appellant contends that the evidence will not sustain a finding that, at the time of delivery, the value of the brick was as much as $3.50 per thousand. We cannot so hold. One of plaintiff's witnesses testified that the brick so delivered was of the value of $6 per thousand.

2. The bill of exceptions further states:

"Charles Hurd, a witness sworn on the part of the defense, testified that the difference in value of the factory building from what it would have been if built of common brick of good quality, or of the best quality of red, kiln-run, well-burned Menominee brick, was $2,500 less than it would have been if so built, and, in like manner, the difference in value of the engine house was $3,000 less than it would have been if built of such brick; and there was no testimony in contradiction of this."

Appellant contends that, on this state of the evidence, plaintiff is not entitled to recover anything, because the damage to appellant's building by reason of the defective character of the brick is greater that either the value or contract price of the brick. This question was disposed of on the first appeal in this case, where the court held that there was no evidence —

"Which would justify the claim of counsel that there was an implied warranty that the bricks to be furnished by plaintiff should be suitable for the use intended by Hood."²

Plaintiff agreed to sell and deliver Hood bricks "to be of the grade known as common bricks, * * * to be of good quality and equal to the sample sent." On the last trial the court found:

"That no sample or samples of the grade known as `common' were ever, in fact, agreed upon or delivered to Hood, as mentioned in said contract, and the brick actually delivered were accepted by defendants without any reference to any sample or samples."

On said first appeal, we held that this contract called for an article of a well-known kind or description; and that there was no implied warranty that it was fit for the purpose for which the purchaser intended to use it. That decision is now the law of this case. Hood, having accepted and retained the brick, is liable for the reasonable value of the same.

3. But appellant claims that, even if plaintiff is entitled to judgment against Hood, it is not entitled to a lien on defendant's property.

We cannot so hold. In order that the subcontractor may maintain a mechanic's lien, it is not necessary that his contract and his performance of the same conform in all respects to the contracts between the contractor and owner. While better brick were needed for the outside course of the walls, the bricks furnished were reasonably adapted for the rest of the walls. Under the circumstances, appellant has no defense except such as could have been interposed by Hood himself.

4. It was stipulated on the trial:

"It is admitted between the defendants that the amount due the defendant Hood from the Hurd Refrigerator Company, if there had been a fulfillment of the contract between the defendants, so that there would be no deduction on account of the bad quality of the brick and the damage arising therefrom, would be $3,695.67, with interest from the 5th day of October, 1891; and, had the brick furnished by the plaintiff to the defendant Hood been according to the contract between the plaintiff and the defendant Hood, this would be the amount due, and a lien on the property described in the complaint."

It was further stipulated between the defendants that a full performance by plaintiff of the contract with Hood would have made a full performance of Hood's contract with the refrigerator company, and that —

"Whatever default in the last-mentioned contract said Hood was guilty of was due to, and caused by, the default of the plaintiff in the performance of the first-mentioned contract in furnishing brick."

As we construe these stipulations, they mean that, if both contracts were fully performed, there would be due Hood $3,695.67, after deducting the full amount due plaintiff, at the rate of $5.50 per thousand for all the brick furnished by it, as, under the statute (G. S. 1894, § 6238), the contractor is entitled to a lien only for the balance due him, after deducting the amount due the subcontractor. The court allowed Hood $3,416.17, which was less than was stipulated as due him. But acting on the theory that the amount which would be due plaintiff, if it had fully performed, was not deducted when stipulating the amount due Hood, his attorney entered judgment in his favor for only $3,045.67, and interest thereon since June 29, 1891. If the theory thus acted on is correct, there has not been enough deducted from what was awarded Hood, because, if plaintiff had properly performed, it was entitled to recover a balance of $920.50, instead of only $258.50, and, in equity at least, its...