121 Mich. 444 | Mich. | 1899
It appears that December 15, 1892, the defendant entered into a written contract 'with plaintiffs for the construction by them of a certain building for defendant. The contract referred to certain plans and specifications which were annexed thereto. The plaintiffs entered upon the work, and on March 10, 1894, notified the defendant that the building was completed according to the contract. No payments, so far as shown by this record, had been made on the contract, and defendant hád not accepted or taken possession of the building. Suit was then commenced by plaintiffs against defendant
The defendant claimed upon the trial that the work and materials did not correspond in many particulars to those required by the contract. While there is a contest over some of these matters, it is not seriously contended that the building, was in all respects as required; but it is claimed here, as it was in the former case, that the defendant waived his right to insist on strict compliance with / the contract terms. The plaintiffs, to maintain the case j upon the quantum meruit, introduced three witnesses, ,! two of whom testified that the building was worth in the ; spring of 1895 $1,327, and the third put it as $1,387.25, • while the plaintiffs stated the value at $1,400. Plaintiffs’ witnesses say, however, that they did not estimate the value of the building on the basis of the specifications, but ¡"took the building as it was. Defendant called several - witnesses who testified to the difference in the value of the building as it was constructed and what it would have been worth if built according to the specifications. Mr. Spitzley placed the difference in value at $400; Mr. Golden, at from $500 to $600; Mr. Shepler, at the same
The questions involved, as stated by counsel for defendant, are:
1. What is the proper measure of plaintiffs’ recovery in quantum meruit for the .construction of the building, which they admit does not conform to the contract and ■specifications ?
2. Was the defendant bound at anytime to take possession of the defective. building before the plaintiffs had ■completed it according to the provisions of the contract F
3. If the defendant was not bound to take possession of the building, was he responsible for injury to it occasioned by dampness and general deterioration arising from ■vacancy during the time preceding his actually taking possession, and while the building was unoccupied ?
*448 ' 4. Cannot the defendant recoup against the plaintiffs the damages he has suffered on account of the loss of the use of such a building as he contracted for ?
Upon the question of the measure of damages, the defendant called Mr. Spitzley as a witness, and asked him .- “ How much would it cost to make the necessary changes in that building to make it conform to the plans and specifications ? ” This was objected to, and objection sustained, upon the ground that it would be a practical impossibility to make the building, in the manner in which it was constructed, conform to the plans and specifications. Similar questions were put to other witnesses, and objections sustained by the court. It was and is the contention of counsel for defendant that these questions were proper, and that the measure of damages which should be permitted, under the circumstances here stated, is what the building was reasonably worth as defendant took possession of it, not exceeding the contract price, less what it would reasonably cost to complete it and make it comply with the contract and specifications. On the other hand, counsel for plaintiffs contend that the proper measure of damages in a case like the present is the value of the building as it is, not exceeding the contract price, less the difference in its value as it now stands and as it would be were it such a building as contracted for; that, to this difference in value to be deducted in the case at bar, there should be added the damage suffered by the defendant by reason of the delay, if any, in constructing the building, and the net result would be the measure of recovery. The court below stated the rule as to the measure of damages substantially as it is claimed by counsel for plaintiffs.
While it is apparent that the rule claimed by counsel for plaintiffs and as given by the court is not the correct rule, the defendant had no reason 'to complain of it. It gave him a greater amount of damages than he was entitled to. In fact, it gave him double damages; that is, under it he could take the building erected at its then value, not exceeding the contract price, deducting from
It is conceded that the building was completed, though it was not constructed in accordance with the specifications contained in the contract. It is well settled that one is not compelled to accept work which does not conform to the contract, and that no recovery can be had on the contract where the contractor has not complied with-the specifications. Allen v. McKibbin, 5 Mich. 449; Martus v. Houck, 39 Mich. 431 (33 Am. Rep. 409 ); Hanley v. Walker, 79 Mich. 616 (8 L. R. A. 207); Eaton v. Gladwell, 108 Mich. 678.
When, however, a building has been erected, though it does not comply with the contract and specifications, and the owner of the land has taken possession, a recovery can be had by the contractor on the quantum meruit. In the present case the structure was for a dwelling-house. It was completed for that purpose, and was suitable for it, though not in compliance with the specifications. The defendant took possession of it in April, 1895. Before tak
In Martus v. Houck, 39 Mich. 431 (33 Am. Rep. 409), the controversy arose out of a contract for the building of a house of worship. It was conceded that the building was not constructed in accordance with the contract. It was to have 15 windows; it had but 13. The floor was to be l-J- inches thick; it was but T[. The studding was to be 3 by 8; it was only 2 by 8. The trial court instructed the jury, in substance, that, if the building was not
“Had the defendants taken possession of this building and applied it to the uses for which they were constructing it, the charge of the circuit judge would, in the main, have been applicable to the case, and might have been supported.”
The contract price in the present case was $1,335. It is contended that there were extras amounting to $99, making the total amount under the contract $1,334, which, with interest added from the time defendant took possession, in April, 1895, would make the amount claimed something over the amount found by the jury, which was $1,513. The defendant asked the court to charge that, the failure to complete the building being the fault of the plaintiffs, no right of action accrued until defendant took possession of the building as it was; also, that defendant was not bound to take possession until it was completed according to contract. These requests were given, but greatly modified by the court in other portions of the charge. The court said, substantially, that, when it became apparent to the defendant that the plaintiffs were not going to complete the building according to the terms of the contract, then it became incumbent upon him to either take his building at that time, or to abandon it entirely to the plaintiffs, and take measures, if he desired the use of his land, to have the structure removed therefrom. We think the court was not in error in this modification, under the circumstances here stated. The plain
It was admitted that the building could have been completed, under the contract, as early as the summer of 1893. The defendant was entitled to the use of the building from that time, but it was not tendered to him until March, 1894.. The defendant asked the court to charge:
“The defendant’s measure of damages in recoupment is the rental value of the building as it ought to have been completed according to the contract, to be computed from the time plaintiffs ought reasonably to have completed the building down to the time when the plaintiffs served on defendant a sworn notice that the building was completed according to the contract.”
This was refused. This request should have been given. Covode v. Principaal, 110 Mich. 672.
We find no other error in the case.
The judgment must be reversed, and a new trial ordered.