98 N.W. 19 | N.D. | 1904
This is an action to foreclose a mechanic’s lien filed by the. plaintiffs against defendant’s bank building in Edinburg, N. D. The plaintiffs erected the bank building under a contract embodying in it the plans and specifications. The amount claimed to be due on the contract price, $2,918, is the sum of $1,097.95. Extra work was done on the foundation and building in the sum of $221.69, which has also been paid for. The answer alleges that the-contract was not performed in substantial compliance therewith, that it was deviated from intentionally, and that the building was erected in such an improper and defective manner and with such inferior materials that such defects cannot be remedied without material injury to the building in other ways. The defendant also pleads a counterclaim for damages on account of such defects in the building in the sum of $1,200. The trial court dismissed plaintiff’s action, disallowed the counterclaim, and gave defendant its costs and disbursements. The appeal is from such judgment. Plaintiffs request a review of the entire case, under section 5630, Rev. Codes 1899.
Defects in the construction of the building are not denied by plaintiffs. There is no claim made by them that the contract was performed in all respects strictly according to its terms. They do claim, however, that the contract was substantially complied with, and that the deviations from the plans and specifications were unintentional, excusable, and capable of remedy, and that by allowing defendant damages for making some changes to make the building strictly conform to the plans the contract will be substantially performed, and defendant receive a building in every way as substantial as though the contract had been performed according to its letter. The defendant has pleaded many particulars in. which the building does not conform to the specifications. In all, twelve variations are the subject of discussion in the arguments and are covered by the testimony. Some of these — in fact most
. The evidence is undisputed that the appearance of the, building is injured by the failure to finish these walls properly, and is conflicting as to whether it affects the durability of the wall or its use •so far as keeping out wind, rain, or snow, and in resisting fire is concerned. It is claimed that, so far as appearances are concerned, it is immaterial, as the adjacent buildings conceal the defects from casual observation. In considering whether the walls are affected so far as durability and usefulness or protection from the elements is concerned, the evidence as to the character of the brick used therein and the manner of laying them must be considered with the evidence as to failure to trowel-strike the work. The witnesses <all agree that brick bats were used to some extent in the outer walls, and that the walls had holes in theip. Some say many and some say few. Owing to the adjacent buildings preventing, the •examination was impossible except from the tops of the adjacent buildings, and then it could only be made at most about two feet below the roofs of the adjacent buildings. But it is amply proven by a convincing preponderance of the evidence that the holes in the wall were quite numerous so far as the examination extended. We see no reason for holding that an examination of the whole walls would show an absence of holes in the unexamined part.
It is claimed that the wall was not laid according to specifications by reason of the fact that the brick in the -outside walls were not properly laid; that they wet’e not laid evenly; that they were not in line; that the wall was, in consequence, wavy. The testimony is uncontradicted that the wall was not laid true to a line. The variation is giv-en variously by different witnesses, the greatest variation being one inch. One witness testifies that the appearance of the
There are other defects complained of, which we will notice •briefly, although we might, with propriety, rest the decision here.
From the statement of deviations last mentioned, and outside of the construction of the walls improperly, to the’ extent that recovery under the contract is not permissible, it is apparent that poor work pervaded the entire building. Noncompliance with the specifications was general, and compliance a rare exception. To hold that these deviations and omissions were not intentional would be a perverse disregard of the probative force of admitted facts. In some instances protests were made as to the class of work done and materials used. It is not an excusable omission to follow the specifications to say that the contractor did not know that they so provided. What is said in Anderson v. Petereit, 86 Hun. 600, 33 N. Y. Supp. 741, has peculiar application to this case: “The testimony introduced by the defendant showed defects which ran through the whole work. Foundations were of less size than specified, and constructed of inferior material. Timbers in the frame of the building and in the partitions were smaller than called for by the specifications. The chimneys were out of plumb, floors and ceilings out of level, walls uneven, and corners not square. Doors, windows, and blinds were defective and of poor material, and gen•erally defective work was the rule, and not compliance with the contract. And in one important particular the plans and specifications were departed from to such an extent as to preclude the conclusion of performance.” In Glacius v. Black, 50 N. Y. 145, 10 Am. Rep. 449, it was expressed: “On the other hand, if these defects and omissions are so numerous and pervading as to show that .the whole job was done in a slovenly and improper manner, not conforming substantially with the plans and specifications, and there has been no waiver, there is no rule of law or morality which entitles the claimant to compensation.” See, also, Wollreich v. Fettretch (Sup.) 4 N. Y. Supp. 326. The conclusion is plain from the whole evidence that the building as completed was not such as was contracted for. Two of plaintiff’s expert witnesses
The judgment will therefore be affirmed.