152 N.W. 529 | N.D. | 1915
Plaintiff, as surviving partner of the firm of Lord & Plorton, seeks in this action to recover upon the quantum meruit for labor and material furnished to defendant at his request in the erection of a building in the city of Minot, known as the Arcade Building. A jury was expressly waived in the district court, and at the conclusion of the trial findings of fact and conclusions of law favorable to the plaintiff were made, and pursuant thereto plaintiff had judgment for the sum of $1,792.92 and interest, together with the costs. Thereafter defendant moved for a new trial, which motion was denied, and the case is here on appeal, both from the judgment and from such order.
Before noticing the specifications of error, a brief statement of the important facts will be made. On June 3, 1907, Lord & Horton, contractors and builders of Minot, entered into a written contract with the defendant, a resident of said city, whereby such contractors undertook
That between June 15, 1907, and January 15, 1908, the said firm of Lord & Horton furnished the necessary labor and material for such building, and caused the same to be erected under the contract aforesaid, and shortly after the completion of such building the defendant went into possession thereof and occupied the same continuously until the trial. That he has made payments on such contract aggregating $13,600.
In March 1908, Lord & Horton commenced an action in the district court of Ward county against the defendant for the purpose of foreclosing a mechanic’s lien which they had theretofore filed against said building for the balance alleged to be due them under such written contract. Defendant answered the complaint in such action, and among other things alleged: “Defendant further alleges that heretofore, to wit, and on or about the 4th day of February, 1908, this defendant tendered in lawful money of the United States, to the said Lord & Horton, the sum of seventeen hundred ninety-two and ninety-two hundredth dollars ($1,792.92), that being the whole sum due and payable under the terms and conditions of said contract, after deducting the items of damage hereinbefore specified, and alloiuing for all just claims due to said plaintiffs, which said tender was by said plaintiffs refused, and thereupon this defendant did, on said 4th day of February, 1908, deposit in the Second National Bank of Minot the said sum last above mentioned to the order of said Lord & Horton; that said sum is at the date hereof on deposit in said bank, to the order of said plaintiffs, and is sufficient in amount to completely pay said plaintiffs all sums due and owing to said plaintiffs.” Also, “that the said sum so specified still remains on deposit in said bank, and this defendant now offers to produce the same in court, in full payment of all claims of said plaintiffs.” That as thus alleged defendant in fact made such tender and deposit,
Such foreclosure action came on for trial before the late Judge Charles F. Templeton of the first judicial district, and at the conclusion of the trial findings of fact and conclusions of law favorable to the defendant were made and judgment entered dismissing the action. The gist of these findings of fact is to the effect that Lord & Horton, the plaintiffs, failed to comply with the contract in numerous particulars detailed in such findings, clearly showing a failure to substantially perform the contract. It is a very significant fact which must not be overlooked that this distinguished jurist, who possessed a keen legal mind and a high sense of equity and justice, not only did not find as a fact that plaintiffs wilfully or intentionally departed from the terms of the contract, but he expressly refused to so find. We have examined his original findings of fact and conclusions of law, which disclose that he refused' to make the following finding: “The court further finds as conclusions of fact that the plaintiffs did not intend to comply with the contract and did intend in some particulars at least to deceive the defendant, Emerson, with reference to what was being furnished, and did endeavor to deliver second and third class work and material in place of first-class; that the plaintiff took no care, and, in places at least, did not intend to follow the plans and specifications with reference to the matters of construction resulting in a very inferior combination, greatly damaging the building; that the building is damaged by virtue of failure to comply with the plans and specifications in the sum of not less than $3,431.10, thus offsetting the whole amount claimed to be due by the plaintiffs.” The refusal to make such requested findings, as well as the refusal of various conclusions of law requested, unmistakably disclose that it was the intention .of Judge Templeton to hold merely that no recovery could be had by plaintiffs on the contract, and he studiously avoided making any finding or conclusion which would in the least hamper or interfere with plaintiffs’ right to recover upon the
Grand Forks, N. D., Oct. 26-, 1908.
L. W. Gammons,
Minot, N. D.
Dear Sir:—
I have yours of the 24th regarding the case of Lord & Horton v. Emerson. My view of the case is that the present action should be dismissed upon the merits. The action is brought upon the contract to foreclose a lien. An action of this nature under the terms cannot be maintained, because there was not a substantial compliance with the contract, and the architect’s certificate was not fraudulently or arbitrarily withheld. That this action cannot be maintained under these circumstances, see Anderson v. Todd, 8 N. D. 158, 77 N. W. 599. As the lien cannot be upheld, plaintiffs cannot in this action recover a money judgment. Bray v. Booker, 6 N. D. 526, 531, 72 N. W. 933. I should not find all of the defendants proposed findings in any event. If you wish to submit a transcript of the testimony and argue the matter before I sign any findings, I will give you a reasonable time to do so.
Let me know your desire in the matter by early mail, as I am anxious to dispose of it.
'Tours truly,
Charles F. Templeton.
At the trial of the present action but little testimony was introduced. The only evidence offered as to the reasonable value of the -work and materials that went into the construction of such building was by stipulation that if one of plaintiff’s witnesses, w'ho was absent, were present and sworn he would testify that such reasonable value was $16,355.15. Proof w'as then offered to show' that the plaintiff, Horton, is the surviving partner of the'firm of Lord & Horton. Defendant was then called -for cross-examination, and testified’ to the fact that he took possession of the building shortly after its completion and has been in possession ever since; also that he paid to Lord & Horton on the con
Among other things, defendant testified relative to his entering into possession of the building as follows:
Q. You did, however, in the fall of 1908, a short time after Lord & Horton had quit work on the building, go into the building and commenced to use it ?
A. Yes, sii’.
Q. You used all parts of the building ?
A. Yes, sir.
Q. And went into full control of the building, with full and complete control of the building, did you? Did you have full control of the building?
A. Expect I did.
Q. You expect you did; don’t you know ?
A. I accepted — but never got an order from the architect.
Q. Did you have to have an order from the architect to have control of the building?
A. Don’t know.
Q. You did have control ?
A. We went in.
Q. You know you had control of the building?
A. I suppose so.
Q. You don’t suppose, you know?
A. I did then.
Plaintiff then offered in evidence the letter from Judge Templeton heretofore quoted, after laying a foundation therefor, whereupon plaintiff rested.
Defendant then offered in evidence the record of the judgment in the prior action, together with the judgment roll, consisting, among other things, of the pleadings, of findings of fact and conclusions of law, and the exhibits attached thereto, all of which were objected to by plaintiff’s counsel. The foregoing is in substance all of the testimony offered in the case at bar.
x\ppellant sets forth 12 so-called specifications of error, but they are treated under five points or subdivisions of their brief, which points we will notice only in a general way. Under point 1 counsel seem to contend that it was error to permit plaintiff in this action to prove the reasonable value of the material and labor which went into such structure. They call attention to the general rule that where parties have made an express agreement the recovery must be had on such contract, or not at all. It is, no doubt, true, as they contend, that as a general rule no implied contract can be found to exist in the face ■of an express contract entered into by the parties, but this general rule has an exception which is universally recognized by the courts. We shall not attempt to cite more than a few of the authorities recognizing such exception. Anderson v. Todd, 8 N. D. 158, 77 N. W. 599; Marchand v. Perrin, 19 N. D. 794, 124 N. W. 1112; Sheldon v. Leahy, 111 Mich. 29, 69 N. W. 76; Columbus Safe Deposit Co. v. Burke, 32 C. C. A. 67, 60 U. S. App. 253, 88 Fed. 630; Scholz v. Schneck, 174 Ind. 186, 91 N. E. 730; Merritt v. Layton, 1 Boyce (Del.) 212, 75 Atl. 795; Henderson v. Mace, 64 Mo. App. 393; Geary v. Bangs, 138 Ill. 77, 27 N. E. 462; Manning v. School Dist. 124 Wis. 84, 102 N. W. 356; Sutherland, Damages, 3d ed. § 711; 30 Am, & Eng. Enc. Law, 1224-1227, and cases cited.
It is, no doubt, true that in order to recover on such implied contract it must appear that the contractor in good faith endeavored to comply with his contract, and also that his labor and material have added value to the owner’s property, resulting in a necessary benefit accruing to him. In a few states, notably Wisconsin and California
“The sole ground upon which a contractor is entitled to anything under this rule is that if he were not paid something the defendant would profit at his expense, although his claim is without merit as far as rights under the contract are concerned. Hence the amount which may be recovered is the amount by which, were no payment made, the defendant would profit at the plaintiff’s expense; that is to say, the amount which represents the fair market value of the structure which, against the wishes of the defendant, has been put upon his land. This value the plaintiff must prove before he can recover. If the contract is a beneficial one to the landowner the contractor is not entitled to recover any margin of the benefit which the former secured by the making of the contract; but the contractor is entitled to the value of the building as it is in the light of the landowner’s right to have the building built, and properly built, for the contract price. If, for example, the landowner secured by his contract the erection for $2,000 of a building worth $3,000, and the plaintiff, in erecting the building, fails to comply with the contract in matters going to the essence of the contract, and the building, erected as it is erected, is worth $2,500, the plaintiff is not entitled to recover $2,500; all that he is entitled to recover is 2%o of $2,000. The additional value of the land to the owner by reason of the labor and materials performed and furnished may, at least in many cases, be ascertained by deducting from the contract price what the house was worth less to the defendant by reason of the deviations from the contract.
“The doctrine is firmly established in Vermont that where a contract has been substantially, though not strictly, performed; where the party failing to perform according to its terms has not been guilty of a voluntary abandonment or wilful departure therefrom, has acted in good faith, intending to perform according to the stipulations, and has failed in a strict compliance with its provisions; and when, from the nature of the contract and of the labor performed, the parties cannot rescind, and stand in stain quo, but one of them must derive some benefit from the labor or money of the other, in such cases the party failing to perform strictly may recover of the other as upon a quantum meruit for such sum only as the contract, as performed, has been of real and
“The substantial performance which is mentioned as requisite to-bring a case within this equitable principle is not that near approach to perfect and complete fulfilment of the contract which is necessary to entitle the contractor to recover on it. In one case the contractor was. reported to deserve about half price and was allowed to recover. In another, he agreed to build a stone wall 4-|- feet high, and more than half of it was less; but it was held that the contract was substantially - performed for the purpose of that remedy. . . .
“The principle enunciated in these cases has been applied in Connecticut. It is there held by a majority of the court that, if the result, of a builder’s labor is a structure adapted to the purpose for which it was designed, and the employer is in the use and enjoyment of it, and it cannot be made to conform to the contract otherwise than by the ex—
We have quoted at much length from this author because of the very clear statement of the rule which we adopt in this jurisdiction, as not only sound on principle, but having the support of the great weight of authority.
By applying this rule to the facts before us, we have no hesitation in overruling appellant’s contentions under all his points, provided the contractors are not, under the evidence, to be charged with bad faith in deviating from the plans and specifications. Even under the restricted ride adhered to in a few jurisdictions as to acceptance of the building by the owner, we think plaintiff should recover, for the testimony of the defendant himself shows that he not only paid $13,600’ on the contract, but that he accepted the building shortly after its completion and has retained the same ever since. True, he should not be held to have accepted the same as a full compliance with the contract (Anderson v. Todd, 8 N. D. 158, 77 N. W. 599), but in the light of these facts, together with the fact that admittedly he thereafter tendered to the contractors the further sum of $1,792.92 and conceded by his answer that this balance was due after deductions for damages occasioned by failure to fully comply with the contract, we think warrants the presumption that he voluntarily accepted the benefits flowing to him from such partial performance of the contract.
Where, we ask, is the proof of bad faith ? We have set out practically all the testimony, and there is not a scintilla of evidence in this record from which the court would be warranted in finding bad faith, unless such proof is furnished in the judgment roll in the prior action. It. is contended that the findings contained in such judgment roll furnish
The doctrine as to when and upon what conditions a former judgment may be successfully urged as res judicata in a subsequent action is too well settled to require extended discussion. In the early history of this court the rule was correctly announced and applied in Fahey v. Esterley Mach. Co. 3 N. D. 220, 44 Am. St. Rep. 554, 55 N. W. 580. We quote from the opinion of Mr. Justice Corliss: “The case we have to decide falls within that class of cases where a judgment on one cause of action is sought to be used as conclusive in a suit on another cause of action. In such cases the judgment is final only as to the matters which were in fact determined in the former case and adjudicated by the judgment. Foye v. Patch, 132 Mass. 105, and cases cited; Stone v. St. Louis Stamping Co., 155 Mass. 267, 29 N. E. 623; Cromwell v. Sac County, 94 U. S. 351, 24 L. ed. 195; Nesbit v. Independent Dist. 144 U. S. 610, 36 L. ed. 562, 12 Sup. Ct. Rep. 746; Bell v. Merrifield, 109 N. Y. 202, 4 Am. St. Rep. 436, 16 N. E. 55. The least uncertain
The foregoing sufficiently answers in a general way the various contentions of appellant, with the exception of the specifications challenging the correctness of the finding as to the reasonable value of the work and material furnished by said contractors in the construction of such building. It is undoubtedly true that the burden was on plaintiff to establish such reasonable value, but we think the finding challenged has ample support. In fact the only testimony offered at all consisted of the stipulation that a witness for plaintiff, if present and sworn, would testify “that the reasonable value of the materials, work, and construction of the building described in the complaint amounted to $16,355.15,” together with the proof as to the admission by defendant in his original answer in the foreclosure case of the fact that, after deductions for damages occasioned by failure to fully perform the contract, there remained due to the contractors only the sum of $1,792.92, payment of which sum was tendered to the contractors by him and such tender kept good by deposit. The trial court evidently accepted such admission as sufficient proof upon this issue, and we think he was fully warranted in so doing. It is well settled that such admission was competent ’ evidence of the fact thus admitted, where, as here, it was shown by the defendant himself that it was incorporated in his answer with his knowledge and consent. 1 Enc. Ev. 424, 425; O’Riley v. Clampet, 53 Minn. 539, 55 N. W. 740; 16 Cyc. 969 — 971.
The judgment of the District Court not only has ample support
