| N.D. | Feb 3, 1910
This is an action primarily for the foreclosure of a mechanic’s lien, and appellant desires a review of the entire case in this court.
The complaint is in the usual form, alleging, among other things, that on April 13, 1906,’ the parties entered into a written contract, by the terms of which plaintiff agreed to construct for defendant at Willow City, a certain concrete building for the consideration of $4,550. It is also alleged that, pursuant thereto, plaintiff constructed such building, and in the construction thereof he furnished^ at defendant’s special instance and request, certain extras on account of changes and alterations in the original plans and specifications, which extras were reasonably worth $669.37, and which sum defendant promised to pay. After deducting credits for payments made, plaintiff claims a balance due him under such contract $3,302.68, for which a lien is claimed and a foreclosure thereof prayed for. The complaint also alleges that, as part payment under the contract, defendant agreed to convey to plaintiff certain real property therein described at an agreed valuation of $2,050, and a specific performance of this portion of the contract is also prayed for. The gist of the defense, as stated in the answer, is that plaintiff failed to construct such building in a good and workmanlike
Turning our attention to the merits, we are confronted with a great mass of testimony covering 728 pages of the printed abstract. A detailed review of such testimony in this opinion is manifestly both impracticable and useless, and we shall not attempt it. We shall merely in a general way refer to such testimony, giving our conclusions'as to ultimate and controlling facts which we deem established,' and apply thereto well-settled rules of law. The contract required plaintiff to construct such building in a good, substantial and workmanlike manner of certain designated dimensions and materials. The learned trial court found, and we think such findings in accordance with the 'dear preponderance of the testimony, that the building “was not built and completed in a good, substantial and workmanlike manner, but that said building was erected in a careless, negligent, unskillful, and unworkmanlike manner of inferior material.” That such finding has ample support in and i$ fully justified by the testimony we are fully agreed.
The witness Sholl, a general contractor and builder of 12 or 13 years’ experience, testified that he examined the building in June, 1907, and again just before the trial, and gave it as his opinion that the material was poor. Witness by using the end of his rule dug into the wall and took'out certain chunks of the cement which were
The witness Higgins, a contractor and builder and familiar with cement and concrete materials, testified that he examined the building, and found the walls very much out of plumb and badly cracked. He says the material was very poor, and with a soft stick he was enabled to bore into the wall at three or four different places, and that such wall was soft, and he drilled a hole through the concrete without any trouble. Says that it took him possibly 30 seconds to bore through the wall with a pine stick. He says he made such tests all over the building, and they indicated very poor material, very poor concrete, and he thinks too much sand and gravel was used and not enough cement, and that the cement used was of an inferior grade and the gravel of a poor quality.
The witness Bowen also testified to the numerous cracks in the walls and to the brittle nature of the material. He says he could run his lead pencil in some of the cracks, and that “you could pulverize pieces of the concrete in your fingers.” He corroborates fully the witness Higgins as to the defective character of the walls.
The architect, Shannon, a witness, for plaintiff, testified that the concrete is not a good grade. When asked if he would call it a very poor grade, he answered: “I have seen .poorer. I wouldn't call it very poor, but I would call it a poor grade.” He was asked: “Would you call Exhibits 2 and 3 (concrete) sufficient for a two-story binding? A. Not if it is all that kind; I would not. Q. And if some was worse than that, and in some places it was a little better, would you consider it safe for a building two stories high, such
The witness Ross, an architect and builder of many years’ experience examined the building in October, 1906, at the request of the authorities of Willow City, and he testified that the walls were badly cracked, buckled and out of plumb. He examined the foundation and found no checks or cracks that would effect the superstructure, and he considered such foundation sufficient. Later he examined the building carefully, and found the walls in still worse condition than -on his first examination, and he gave it as his opinion that the walls of the building are liable to collapse, and that the-structure is dangerous. He again examined it on the day that he gave his testimony, and found its condition worse. He was asked: “Q. Is it a safe building now, Mr. Ross ?” to which he answered: “No; by no means. Q. As it stands there will it ever be a safe building? A. No, sir.” And he says that the building is not only worthless, but a detriment to the lot on which it stands.
There is much more testimony in the case in corroboration of the foregoing, but it would serve no useful purpose to refer to it. Suffice it to say that from an examination of all the testimony we have no hesitancy in approving the findings of the trial court as to the defective material and workmanship in such building. Plaintiff attempted to show that the condition of the walls was caused by a faulty construction of the foundation which was furnished by defendant, but in this he is not supported by the preponderance of the proof. Plaintiff, having failed to 'establish a substantial performance- of the contract on his part, cannot recover in this action, which is based on such contract, unless it appears by a preponderance of the evidence that defendant in some manner waived such substantial performance. Anderson v. Todd, 8 N.D. 158" court="N.D." date_filed="1898-11-22" href="https://app.midpage.ai/document/anderson-v-todd-3680440?utm_source=webapp" opinion_id="3680440">8 N. D. 158, 77 N. W. 599; 9 Cyc. 759; 6 Cyc. 54, and cases cited. We find nothing in the evidence to warrant a finding that defendant waived the provisions of
The trial court refused defendant’s first proposed conclusion of law, “That defendant is not indebted to the plaintiff in any sum ■whatever,” but found his second proposed conclusion, “That the plaintiff is not entitled to a lien against the property described herein,” and appellant urges that such rulings are inconsistent. To this we cannot assent. The learned trial court in refusing the first proposed conclusion no doubt merely intended to* refrain from deciding issues not before it. If the plaintiff had requested the court to find as a conclusion of law that defendant is not indebted to the plaintiff upon the contract in question in any sum whatever,such request no doubt would have been granted. It is apparent that the trial court merely intended to, and did, hold that there was nothing due plaintiff under the contract, leaving open for future consideration the question of the defendant’s liability in an action on the quantum meruit, should such an action be brought.
In conclusion, suffice it to say that we are entirely satisfied with the findings and conclusions of the trial court (and the same as adopted by this court). It follows that the judgment appealed from must be, and the same is hereby, affirmed.