Wm. P. Jungclaus Co. v. Ratti

• Citation: 67 Ind.App. 84,118 N.E. 966
• Decision Date: 12 March 1918
• Docket Number: No. 9476.,9476.
• Parties: WM. P. JUNGCLAUS CO. v. RATTI et al.
• Court: Court of Appeals of Indiana

67 Ind.App. 84

118 N.E. 966

WM. P. JUNGCLAUS CO.

v.RATTI et al.

No. 9476.

Appellate Court of Indiana, Division No. 1.

March 12, 1918.

Appeal from Superior Court, Marion County; W. W. Thornton, Judge.

Action by the Wm. P. Jungclaus Company against Mary Josephine Ratti and others. From a judgment for defendants on their counterclaim, plaintiff appeals. Affirmed.

Charles O. Roemler, of Indianapolis, for appellant. Baker & Daniels, of Indianapolis, for appellees.

HOTTEL, J.

This appeal is from a judgment in appellees' favor in an action brought by appellant to recover for labor and materials furnished by it under a contract for the erection of a building on appellees' real estate, and to foreclose a mechanic's lien against such real estate. In addition to the amount alleged to be due on the contract price, recovery was also asked for extra labor and material alleged to have been rendered and furnished by appellant. The complaint is in one paragraph to which there is an answer in general denial and a plea of payment. Appellees also filed a counterclaim for damages resulting from delay in completion of the work and from alleged defective work. No answer was filed to this counterclaim, but by agreement appellant was permitted to introduce evidence to prove any delay in the prosecution of its work caused by appellees or their agents. It was agreed at the trial that the contract price for work done by appellant was $41,903, and that it was entitled to recover for undisputed extras, $96.42, making a total of $41,999.42; that as against this amount appellee was entitled to credits for amounts paid thereon, aggregating $41,110, leaving an undisputed balance due appellant on the items of indebtedness, alleged in its complaint, of $889.42. The court found that appellant was entitled to recover said amount on its complaint, and that appellees were entitled to recover on their counterclaim the sum of $889.50, and rendered judgment for appellees against appellant for eight cents and costs. A motion for new trial filed by appellant was overruled, and this ruling is assigned as error. The following grounds of said motion are relied on for reversal: (1) The decision of the court is not sustained by sufficient evidence; (2) the decision is contrary to law; (3) the damages assessed are excessive; (4) the assessment of the amount of recovery is erroneous, being too large.

[1] In its points and authorities, under the heading “Error in Overruling the motion for New Trial,” appellant states ten separate general propositions without attempting to specifically apply either of them to either of the said grounds of its motion for new trial. This is not a strict compliance with the rules of the court. German Fire Ins. Co. v. Zonker, 57 Ind. App. 696, 108 N. E. 160;Chicago, etc., R. Co. v. Dinius, 180 Ind. 596, 103 N. E. 652;Weidenhammer v. State, 181 Ind. 349, 103 N. E. 413, 104 N. E. 577.

[2] However, we think it sufficiently appears from said brief that appellant, by each of said grounds of its motion, has, in effect, attempted to present the same question, and such question will therefore be considered. American, etc., Co. v. Yonan, 59 Ind. App. 700, 109 N. E. 922;Richey v. Cleveland, etc., Ry. Co., 47 Ind. App. 123, 93 N. E. 1022.

The decision and judgment, in so far as it can be said to be based on the items of defective work for which damages are asked in the counterclaim, is not questioned, it being conceded that there is some evidence to support each of such items; but it is insisted by appellant that the amount found to be due appellees on such counterclaim is in excess of the total amount claimed therein for defective work.

[3] In this connection it is claimed that the trial court when it made its decision announced that it allowed $439.50 on account of defective work, and $450 as “penalty” for delay in the completion of the work. The finding, however, is general, and it is conceded that the record does not show such an announcement, and hence that it cannot be considered by this court but it is insisted, as before indicated, that it affirmatively appears from the items of the counterclaim and the evidence that the decision and judgment herein is necessarily based in part on damages allowed for delay in the completion of said work. No question is raised as to the period of delay for which the stipulated damages should be computed if allowable, but the sole contention is, in effect, that the undisputed evidence shows that such delay resulted from the default of the owners of the property, and of contractors employed by them, and that therefore appellant should not be held liable for any amount on account of such delay; that to the extent that the decision of the trial court includes an allowance for any amount for such delay, it is not sustained by sufficient evidence and is contrary to law, and that to such extent the assessment of the amount of recovery is erroneous, in that it is too large.

[4] Assuming, without so deciding, that the question indicated is properly presented by one or more of said grounds of its motion for new trial and by its briefs we will proceed to determine it. However, it should be first stated that it is questionable whether, under all the evidence in the case, this court can say that the evidence is uncontroverted upon the question of the delay in the completion of the work being caused solely by the default of appellees or contractors employed by them. Though it be granted that the evidence offered by appellant as to the cause of such delays was undisputed, the trial court had a right to take into consideration all the other evidence in the case, including circumstances and surroundings that might in any way affect the weight or credibility of such evidence. Cleveland, etc., Ry. Co. v. Quinn, 54 Ind. App. 11, 24, 101 N. E. 406.

[5] Appellant's contention admits delay in the completion of the work, and hence under the provision of its contract infra it was liable for the damages provided for therein resulting from such delay, unless it appears that it was caused by the “owner, *** architect, or *** any other contractor employed by the owner upon the work,” as provided in article VII, infra, of the contract. While appellant introduced witnesses who testified in effect that appellees and contractors employed by them caused delays in the completion of said work, the total of which equaled, or more than equaled, the entire delay in such completion, and while these witnesses were not expressly contradicted by other witnesses, their evidence or any part thereof, like any other oral evidence, might have been disregarded by the trial court if the court considered it unreasonable or inconsistent with facts and circumstances shown by the other evidence in the case. Cotner v. State, 173 Ind. 168, 89 N. E. 847;Southern R. Co. v. Limback, 172 Ind. 89, 85 N. E. 354;Cleveland, etc., Ry. Co. v. Starks, 58 Ind. App. 341, 361, 362, 106 N. E. 646, and cases cited; Cleveland, etc., Ry. Co. v. Quinn, supra.

However, again assuming, without so holding, that said evidence is in fact uncontroverted, and that neither the trial court nor this court can disregard it, we are of the opinion that an allowance for delay in the completion of the work was properly included in the decision of the trial court, and hence that such decision is sustained by the evidence, and in accord with the law applicable thereto.

The parties agreed that “Exhibit 1A” was the contract between them. This contract purported to be the “Uniform Contract. Form of Contract Adopted and Recommended for General Use by the American Institute of Architects and the National Association of Builders. *** Revised 1907.” The parts thereof now material are as follows:

“Art. II. It is understood and agreed *** that the work included in this contract is to be done under the direction of said architects, and their decision as to the true construction and meaning of the drawings and specifications shall be final.”

“Art. VI. The contractor shall complete the several portions, and the whole of the work comprehended in this agreement by and at the time or times hereinafter stated, to wit: The work to be completed on or before the 1st day of November, 1912. A penalty of fifteen dollars per day will be due the owners for each day after November 1, 1912.

Art. VII. Should the contractor be delayed in the prosecution or completion of the work by the act, neglect or default of the owner, of the architect, or of any other contractor employed by the owner upon the work, *** then the time herein fixed for the completion of the work shall be extended for a period equivalent to the time lost by reason of any or all the causes aforesaid, which extended period shall be determined and fixed by the architect; but no such allowance shall be made unless a claim therefor is presented in writing to the architect within forty-eight hours of the occurrence of such delay.”

“Art. XII. In case the owner and contractor fail to agree in relation to matters of payment, allowance or loss referred to in arts. III or VIII *** or should either of them dissent from the decision of the architect referred to in art. VII of this contract, which dissent shall have been filed in writing within ten days of the announcement of such decision, then the matter shall be referred to a board of arbitration to consist of one person selected by the owner, and one person selected by the contractor, these two to select a third. The decision of any two *** shall be final and binding on both parties hereto.”

[6] Appellant's first contention is that it should be allowed additional time because of the delay on the part of the owners in clearing the site for the building, which they had agreed to finish by May 20, 1912, the date when appellant was to have begun the work. In the case of Van Buskirk v. Board, etc., 78...