Evans v. McConnellEvans v. McConnell
- Reporters:
- Before:
- Kinne
Lead Opinion
The findings of the referee are lengthy, and we summarize them as follows: That the contract was entered into for the construction of the house for seven thousand three hundred and fifty dollars, and its performance secured by bond of C. L. Poor, for two thousand dollars; that Evans proceeded to do the work until May 5, 1893, when, the work being unfinished, it was taken out of his hands, and finished by another; that the work dragged from the beginning; the plastering did not begin until the week before Christmas in 1891, and then McConnell stopped it for a time, claiming it was unsafe to plaster then; that on May 2,1892, McConnell, through the architect, served a notice upon Evans that, owing to his failure to comply with his contract, one Sanson would complete the work; that the latter completed it at an expense of six .hundred and fifteen dollars; that liens were filed as claimed by McConnell; and that the latter informed material men that they must not trust Evans on the credit of the building; that the delay in the work was caused by its taking more time to do the stone work than was anticipated; workmen were hard to get; time was lost in making changes, some because of errors of the contractor; Evans was without means, *332and had difficulty to obtain materials; the weather in the spring of 1892 was unfavorable; that, at the time, McConnell was insisting upon closer joints and better stone work; he did not promise to pay therefor, nor did Evans claim any compensation therefor; that, if Evans wa.s entitled to recover for better stone work than the specifications provided for, he would be entitled to one thousand six hundred dollars therefor, but there was never any promise, expressed or implied, on part of McConnell, to pay for such work; that the taking of the work out of Evans’ hands was by his consent, and not wrongful; that McConnell, by his acts, led Evans to believe the performance of the contract, as to time, would not be exacted, and that a reasonable time ■ would be allowed him in which to complete the job; McConnell is allowed five hundred dollars for damages for defective work and material; that McConnell should be charged thirty dollars for extras on the attic floor. He finds that McConnell owes Evans one thousand four hundred and forty-nine dollars and eighty-nine cents and interest. As conclusions of law, the referee finds that the work done by Evans was not under an implied or oral contract, and that the contract price should govern; that the work was taken from Evans in accord with the provision of the contract; that Evans is not entitled to recover extra for stonework; that the right to enforce the penalty has been waived; that McConnell has the right to pay the liens, and to have judgment against Evans for said sum, less the amount found due Evans. This report was excepted to, the exception overruled, and a motion for judgment on the report sustained, and a decree entered ordering the payment of certain liens. After payment of these liens, a decree was entered, in favor of McConnell, and against Evans, for “nine hundred and forty-three dollars and costs, which was excepted to.
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IY. Evans contends that he had a right to rescind the contract, and to recover the reasonable value of his labor done, and materials furnished. We need not determine that question. The evidence shows very satisfactorily that Evans never undertook to rescind the contract. We cannot consider it in detail. Nor was the work taken out of Evans’ hands wrongfully. Indeed, there is evidence to show that he was not only not averse to having the job taken out of his hands, but recognized his own inability to complete it.
Y. Counsel file a stipulation in this court, showing that’ the mechanic’s lien of Kemper has been settled, and the appeal, so far as it pertains to it, dismissed.
YI. Lastly, it is contended that the allowance of the five hundred dollar damages to McConnell for defects in the construction of the house, is more than the evidence warrants. We cannot recite these defects. They were many, and some of them serious. While the evidence did. not show in detail the damages as to each particular item, it was to the effect that in the aggregate it was five hundred dollars. Evans introduced no evidence whatever as to these matters. We discover no error in the holding of the court below in regard to this item.
After a review of the entire record, we conclude that the decree below should be affirmed.
Rehearing
Supplemental Opinion on Re-hearing.
Rothrock, C. J.A petition for re-hearing was filed in this case, in which it was urged that this court erred in applying section 8652 of the Code to the facts disclosed in the evidence. No other question was presented in the petition. Oral arguments were made by counsel for appellant and the appellee when the petition was submitted. A majority of the members of the court were of opinion that the record and evidence should be re-examined, as far as the third point in the opinion was involved, and the petition for re-hearing was sustained. After the petition was filed the appellant filed an additional argument, in which other questions in the case are discussed. The appellee, as was his right, filed a printed argument after the petition for re-hearing was granted. We mention this condition of the record for the purpose of saying that the only doubt entertained by any member of the court at any time was whether the appellant was, under the evidence, precluded from recovering extra compensation for the stone ashlar work, and whether the section of the Code above cited was applicable to the case. In view of the contention between counsel as to the weight of the evidence upon this question, we have given the whole record a careful examination. We desire to refer to the following statement in the opinion: “Now, we have a case where the meaning of the provision of the contract touching the stone work was a matter of contention between the owner and contractor from an early perio in the work.” Our re-examination of the evidence lea Is us to the conclusion that this statement is too broaa It should have been limited to contentions about oth> r part‘s of the work, and possibly to some disputes which occurred *339in reference to the quality of the stone used in the ashlar work. It appears that, before the stone ashlar work was commenced, Evans had done some of that kind of work on a house owned by one Cooper. The referee in this case found the following among other facts: “I find, however, that neither McConnell nor the architect gave Evans any directions as to the manner in which the stone should -be prepared; and it is without dispute that, before the ashlar work on McConnell’s house was begun, he and Evans examined some ashlar work that had been done by Evans on Cooper’s house recently, and their talk was that McConnell’s job was to be as good as Cooper’s, or similar talk. The stone in Cooper’s job was cut by a stone cutter.” The referee further found as follows: “But I feel bound to further find that there was never any promise or agreement, express or implied, on the part of McConnell to pay for such work. The burden is on Evans to establish this claim, and it is clear to my mind that he has not sustained it.” We think these findings are supported by a fair preponderance of the evidence. It is true that Evans testified as a witness that McConnell expressly agreed that he would recompense him for the claimed extra cost of the ashlar work. And one or two of the workmen who were engaged- in the building testified that McConnell at one time commenced the work, and said, in substance, to Evans, that if all the work was done in that way, he would be satisfied, and would make it all right with him (Evans). But McConnell, in his testimony, denied that there was any statement made by Evans, that he claimed any compensation for extra work on the walls. The following is a part of his testimony: “We talked over the broken ashlar before the contract was made. Talked with the architect and Evans about it, and, if I didn’t know before, what broken ashlar was. I became *340conversant with it before I wrote my contract. While we were discussing this, Evans gave me two pictures of houses of that class of work, and said- he brought them to show what I might expect in my house. When I made the contract no work had been done at Cooper’s. Cooper’s work was commenced first, and the foundations carried up, ready for the frame part of the house, before any of the broken ashlar work on my house was done. Evans said it was going to be broken ashlar in the Cooper foundation, and he would show me a sample of how it would be, and what I might expect in my house. When he got the Cooper wall up two or three feet above the turf line, we went over together, and he showed it to me, by the bay window, what kind of ‘work, — only he said my work would be a little better than this, because there will be some larger stone in it; there will be more face to the stone. He never said, that to do my house like the ashlar work in Cooper’s would bankrupt him, or that kind of work would cost more than that I was to have in my specifications. He never asked me to pay him more for the stone work, and I never heard of any intimation that he expected more pay. until the last two or three days in August, 1892. Never heard it mentioned or intimated that he expected any more from me than the contract called for, and I never promised to pay him more on the stone work. I just let the agreement stand as it is. After I learned that Evans had made a contract for the Kemper stone, I went down to Kemper’s quarry, merely out of curiosity, and had a little talk with him, but I didn’t interfere with his contract. I went there three or four times, or several times, after that, at Evans’ suggestion, for the purpose of urging Kemper to the delivery of the stone, but I went only as Evans requested me to do. There was some pink stone in Kemper’s quarry, and I said I thought some of *341it scattered around over the wall would look nice, and we would be pleased to have it. I afterwards learned it was an inferior quality of stone.” Here is a square and unreconcilable conflict between the testimony of the two parties to the suit. We think the referee and the district court correctly found that the facts and circumstances attending the performance of the work, as well’ as the testimony of the architect, corroborate McConnell. Other evidence in the case shows that certain alterations and additions were made in the construction of the building, and on December 15, 1891, after the walls were completed, the parties entered into a written contract, by which they fixed the amount to be paid for a large number of items of extra work. No mention is made in this last contract of any claim for extra ashlar work. There was every reason why such a claim should have been made, for Evans had contracted debts for materials, and his creditors were pressing him for payment. Our conclusion is that McConnell acted in the belief, and understood from the beginning, that the contract required ashlar work like that- on Cooper’s building, and that Evans not only knew that he was acting in that belief, but inspired the belief himself, by adopting Cooper’s wall as a model. The case is, therefore, plainly within the section of the Code above cited. We think whatever hardship there is in this case to Evans is to be accounted for by his undertaking the building of the house for a much less sum of money than the labor and materials cost. The former opinion is adhered to, and the decree will stand affirmed.