148 Mich. 190 | Mich. | 1907
{after stating the facts). It is one of the contentions made by defendant that complainants should be remitted to an action at law. It is based upon the proposition that the written contract requires the buildings to be constructed to the satisfaction of the owner, who is given power to reject materials and workmanship not in conformity with the specifications, and that the evidence shows defective materials and workmanship. Hanley v. Walker, 79 Mich. 607 (8 L. R. A. 207); Boots v. Steinberg, 100 Mich. 134. The learned trial judge disposed of this contention by finding that defendant, though protesting, took possession . of the buildings, after
“ When a person contracts with another to build, or to do some portion of the work in constructing buildings, upon real estate belonging to the owner of such real estate, his taking possession after the other has left the premises cannot be construed as an unequivocal acceptance, although he thereby takes possession of, and appropriates to his use and benefit, the labor or materials of the contractor. He must do so, as a matter of necessity, in many cases, or suffer the property to stand idle and unused, to the great detriment of all parties, and especially so of the owner. The most that can be said, in such cases, is that the act of the party, and all the circumstances, may be taken into consideration in the determination of the question whether there is an implied waiver of the condition precedent.”
I find no evidence to support a finding that defendant ever accepted the buildings as completed or waived his right to insist that they were not built according to contract. On the contrary, he made written demand to have the roofs on each house removed and new roofs built, and has since put on new roofs. Complainants refused to build new roofs, agreed to, and did, remedy other defects which defendant and certain disinterested builders employed by complainants called their attention to, and requested defendant by speech and writing to point out any other or further discovered or supposed defects. This, defendant did not do. I find, therefore, that if defendant’s objections to the roofs are without substantial basis—
“The roof boards are too far apart, and are besides too shaky, split, and rotten. The shingles are not the quality specified by our contract, the butts having knots and worm holes, and, such as they are, they are not properly laid. * * * I must insist upon your replacing the three roofs at once with proper roofs such as were contacted for by me.”
A review of the conflicting testimony introduced leads to the conclusion and finding that the shingles were of the quality specified, the roof boards were of proper material, and properly put on. I have had most trouble over the question whether they were properly laid. The contract calls for cheap material. It does not permit poor workmanship. Giving effect to that testimony which appears to be best entitled to be believed, I find that the shingles were, substantially, as well laid as such shingles can be laid. It appears, also, that defendant .was present from time to time, inspecting the work as it progressed, and that at his request the workmen were permitted to select, to some extent at least, the shingles which were put upon the houses, using the worst of them to cover the outhouses. Complainants were warranted in refusing to replace the roofs.
There were no written agreements for extra work. Counsel for complainants invoke the rule that, where parties to a contract containing such a clause as appears here deal with each other, the provision is waived when the owner himself requests that the work be done or the materials furnished. Ford's Case, 17 Ct. Cl. 60; Barlow v. U. S., 35 Ct. 01. 514; 30 Am. & Eng. Enc. Law (2d Ed.), p. 1283. The testimony of some experts who
Counsel for complainants say that the court was in error in making certain allowances to defendant on account of defects which he found to exist, without evidence of the expense of remedying such defects, and the inference, from the argument made, is that defendant was bound to supply such proof. But as to some of these alleged defects there was no dispute. It is admitted that the foundation walls were not made of material consisting of four parts gravel and one part cement, as the contract specified. The proportions were six parts to one. This was discovered by defendant during the hearing in the court below.
The decree will be modified, by adding to the same $24 as of February 19, 1906, and, as modified, affirmed. Neither party will recover costs of this appeal, but the cost of printing the record will be equally divided between them.