82 Minn. 215 | Minn. | 1901
Plaintiff seeks to foreclose a lien upon a lot and building constructed for defendant under a written contract, by the terms of which it was to be accepted when completed and equipped with proper machinery for operation as a creamery, according to the plans and specifications attached. The building was erected upon land held by a stockholder in trust for the creamery association, and it is sought by the plaintiff to impose the lien upon such land, as well as the building and machinery therein, for the full amount of the contract price. The building was completed and machinery placed therein by plaintiff, and tendered to the defendant association, which declined to accept it, upon the claim that the same had not been constructed in accordance with the written agreement between the parties, which wa's the issue upon the trial in the court below, who made specific findings of fact to the effect that the plans and specifications had never been carried out, and that “said building was not a reasonably sound, good and substantial building, and the said contract was not substantially performed by the plaintiff as to said building.” Judgment was ordered for defendants, and plaintiff, after a motion for a new trial had been denied, appealed to this court.
The evidence in the case was heard partially by the court below, while a large portion of such evidence was taken before a referee agreed upon by the parties, and reported to the court.
The principal contention in this case on behalf of the plaintiff is that the evidence does not support the findings of the trial court, for the reason that against its findings of fact it was shown that there was a substantial compliance with the terms of the contract between the parties. The trial court found that the contract required the construction of a building having a one-third pitch to the roof, while the building itself had a pitch of four inches less, which would affect its capacity to shed rain; that a large portion of the shingles used upon the roof were not as prescribed, but of a very inferior quality, and were not laid in a reasonable, suitable, and workmanlike manner, as required by the contract, leaving many holes in the roof; also that the siding used in the construction of the building was not of a good quality, as required, but that the same was unsound, cheap, and split, as a result of which there was also a large number of holes in the sides of the structure through which the rain and snow would beat.
These and other departures from the terms of the agreement between the parties were found by the trial court, from which
“Where a contractor has in good faith made substantial performance of the terms of the contract, but there are some slight omissions or defects, which are readily remedied, so that an allowance therefor out of the contract price will give the other party, in substance, what he bargained for, the contractor may recover the contract price, less the damages on account of the omissions. But this rule of substantial compliance does not apply where the omissions or deviations from the terms of the contract or its performance are so substantial that an allowance out of the contract price would not give the owner. essentially what he contracted for,” — citing previous cases on that subject in this court. Anderson v. Pringle, 79 Minn. 433, 82 N. W. 682.
We cannot, from the careful review we have given of the evidence in this case, hold that the rule above laid down, invoked by the plaintiff for its benefit, will relieve it from the conclusion of the trial court that the contract was not substantially performed, or that the defendant was bound to accept the building upon its completion.
The contract provides that, “during the erection of said factory * * its board of managers shall confer with said first party [plaintiff] from time to time.” It is urged that this provision imposed upon the defendant the duty of pointing out, and objecting to, any defects or omissions, when discovered or known, while the building was being constructed, and that a failure to do so estops the defendant from questioning such defects when the building was completed. The building was in fact built by a subcontractor, and the evidence tends to show that the manager and other directors of defendant were present at times during its construction. There is no evidence that the plaintiff and defendant’s directors conferred during the progress of the work, or that they
We have examined the assignments not specifically referred to, and find no reversible error occurring during the trial of the cause.
Order affirmed.