127 Neb. 609 | Neb. | 1934
The nature of this case is a suit in equity. The Olson Construction Company sued to foreclose a mechanic’s lien for a balance due for construction of a commercial building, and encountered a conventional cross-petition for damages caused by faulty construction filed by the Commercial Building & Investment Company, which will hereinafter be referred to as the building company. The pleadings made up more than 50 pages of the transcript, and the evidence adduced at the trial consists of three large volumes embracing 1,335 pages. To abstract either the pleadings or the evidence would unduly extend this opinion. At the end of the trial occupying several weeks the court found for the plaintiff in the sum of $4,724.96,
The sole matters presented for our consideration relate to the correctness of the judgment of the trial court in favor of the defendant building company for the following items: Owner’s loss of rent on the first floor of the building in the sum of $250, and on the second and third floors in the sum of $i,100, due to failure to complete the building on or before May 1, 1930, as required by the contract; damages for failure to comply with terms of the contract relating to the painting of the “waiting room, etc.,” $370; damages for failure to properly complete construction of the second and third floors, $4,200. But, in many respects, these questions as here presented will have to be determined from disputed evidence, detailed from the witness-stand by witnesses appearing and testifying in person before the trial court. A number of (Witnesses, properly to be designated as expert witnesses, so testified at length. The trial court saw them, heard them, and observed them when testifying. Preponderance of evidence is not necessarily determined by the number of opposing witnesses.
Where the evidence on material questions of fact is in irreconcilable conflict, this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying, and must have adopted one view of the facts rather .than the opposite. Magill v. Magill, 114 Neb. 636; Peterson v. Winkelmann, 114 Neb. 714; Enterprise Planing Mill Co. v. Methodist Episcopal Church, 100 Neb. 29; Greusel
The first item of counterclaim permitted by the trial court is referred to in its decree in the following language:
“That the plaintiff when painting and decorating the waiting room, etc., in the said building, did not permit the plastering to dry sufficiently before applying the paint and did not perform the work in a proper and acceptable manner; and in consequence thereof the work did not stand up, but almost immediate^ became blotched and unsightly and not up to the requirements of the plans and specifications; that by reason of the premises the owner was damaged by the plaintiff in the sum of $370 and that the owner is entitled to recover such sum from the plaintiff upon his cross-petition.”
We find the evidence fully sustains this determination and the same is approved.
The next item for consideration is $1,350 in damages, allowed for failure to complete the building within the time as specified by the contract. That the building was not completed within the time specified is conclusively established. The actual damages occasioned thereby are amply proved. However, appellant claims that it was entitled to certain extensions of this time and that the building was completed within such time if credit is allowed, for extensions to which it was entitled. Obviously, the contract provisions govern. The form of contract is one: issued by the American Institute of Architects, being,. “The standard form of agreement between contractor and owner for construction of buildings, * * * when a stipulated sum forms the basis of payment.” Among its provisions are the following: (a) “That the contractor' and' the owner * * * agree as follows * * * and shall do everything required by this agreement, the general conditions of the contract. * * * (b) The work to be performed under-this contract shall be * * * completed May 1, 1930.”
The following appear in “The general conditions of the contract”:
*612 “Art. 1 * * * (f) All time limits stated in the contract documents are of the essence of the contract.”
'“Art. 15. Changes in the work. The owner, without invalidating the contract, may order extra work or make changes by altering, adding to or deducting from the work, the contract sum being adjusted accordingly. All such work shall be executed under the conditions of the original contract except that any claim for extension of time caused thereby shall be adjusted at the time of ordering such change.”
“Art. 18. Delays and extension of time. If the contractor be delayed at any time in the progress of the work by any act or neglect'"■'of the owner or the architect, or of any employee of either, or by any other contractor employed by the owner, or by changes ordered in the work, or by strikes, lockouts, fire, unusual delay in transportation, unavoidable casualties or any causes beyond the contractor’s control, or by delay authorized by the architect pending arbitration, or by any cause which the architect shall decide to justify the delay, then the time of completion shall be extended for such reasonable time as the architect may decide. No such extension shall be made for delay occurring more than seven days b.efore claim therefor is made in writing to the architect. In the case of a continuing cause of delay, only one claim is necessary.”
While a real dispute appears in the evidence as to the extent of the delays occasioned by the owners, and as to whether certain delays were occasioned by causes which would entitle the contractor to an extension of time, there is no dispute that the contractor wholly failed to conform to the provisions of article 18 above quoted, and never made an application for an extension of time as therein required, nor has due waiver thereof been established by competent proof.
In the decision of a similar question the following language was employed by this court in Carter v. Root, 84 Neb. 723, 731, viz.: “We come now to the second ques- »
Further, “Where the contract so provides the builder must give notice to the owner or the architect of delays arising from stipulated causes, or of his claim for additional time by reason of such delays, or he will not be excused or entitled to additional time, unless such formality is waived.” 9 C. J. 782.
And again: “Where the contract so provides, the determination of whether the builder’s delay was occasioned by any of the causes stated in the contract and without
It is quite obvious, in principle, in view of the explicit agreements of the parties on the subject of “extra time,” that the conclusion announced by the trial court as to damages occasioned by delay in the completion of the building is the conclusion which the evidence considered de novo compels. Total failure of the contractor to comply' with the terms of the contractual provisions quoted, which constitute a prerequisite to its right to relief, under the facts in the case, excludes its claims without reference to their merits otherwise.
The most important matter of dispute between the parties relates to the subject of the construction of the second and third floors. The trial court determined they were improperly constructed, and allowed $4,200 as damages therefor. The following provisions of the contract of the parties, it is thought, have a bearing on the questions to be determined:
“Art. 17. Deductions for uncorrected work. If the architect and owner deem it inexpedient to correct work injured or done not in accordance with the contract, an equitable deduction from the contract price shall be made therefor.”
“Art. 19. Correction of work before final payment. The contractor shall promptly remove from the premises all materials condemned by the architect as failing to conform to the contract, whether incorporated in the work or not, and the contractor shall promptly replace and reexecute his own work in accordance with the contract and without expense to the owner and shall bear the expense of making good all work of other contractors destroyed or damaged by such removal or replacement.
“Art. 20. Correction of work after final payment. Neither the final certificate nor payment nor any provision in the contract documents shall relieve the contractor of responsibility for faulty material or workmanship and,*615 unless otherwise specified, he shall remedy any defects due thereto and pay for any damage to other work resulting therefrom, which shall appear within a period of one year from the date of substantial completion.”
We have before us as our fundamental guide in the settlement of this controversy a contract in writing. The general rule appears to be that where parties have entered into a contract or agreement which has been reduced tQ writing, in the absence of fraud or mistake, parol evidence is not admissible to contradict, vary, alter, add to or detract from the terms of the instrument. Norfolk Beet Sugar Co. v. Berger, 1 Neb. (Unof.) 151; State v. Board of County Commissioners of Cass County, 60 Neb. 566; Sylvester v. Carpenter Paper Co., 55 Neb. 621; Delaney v. Linder, 22 Neb. 274; Agnew v. Montgomery, 72 Neb. 9.
A party who relies upon custom or usage, either to show performance by him or nonperformance by the other party to the contract, must plead the same.
Within the “general conditions” of the controlling contract we find the following provision: “Art. 2. * * * The contract documents are complementary, and what is called for by any one shall be as binding as called for by all. The intention of the documents is to include all labor and materials, equipment and transportation necessary for the proper execution of the work.”
In the event of an omission from an instrument which is supplied by implication or presumption of law, parol evidence is not admissible to supply the same. Driver v. Ford, 90 Ill. 595; Union Special Sewing Machine Co. v. Lockwood, 110 Ill. App. 387; Warren v. Wheeler, 8 Met. (Mass.) 97; Blake Mfg. Co. v. Jaeger, 81 Mo. App. 239; Thompson v. Ketcham, 8 Johns. (N. Y.) 190, 5 Am. Dec. 332.
As to the actual conditions of the upper two floors in controversy, the following facts may be said to be fairly established by the evidence, viz.: When the concrete used on the second floor was being poured, the struts or supports of the steel pans involved were rested upon the
The terms of the contract in suit contemplate that what is not the result of good workmanship will be replaced by what will conform thereto. The language of the contract quoted, viz., “an equitable deduction from the contract price shall be made therefor,” if this right on behalf of the owner is waived, implies that such “equitable deduction” shall equal the actual cost of the strict compliance foregone. Then at a more convenient season the owner may procure to be done that which the contractor should have properly performed in the first instance.
As to the cost of supplying the defects in the second and third floors, the testimony of architect Wilson on cross-examination is enlightening, viz.: “Q. And what was your suggestion then as to correction by surfacing the floor? A. If you were to attempt to get a dead level floor on the present construction you would have to do it by either a fill of an inch and a half or two inches of concrete over the present structure, or add an asphaltic material such as unicrete in a thickness of not less than a quarter to half an inch at the thinnest point, and varying in thickness to bring the floor to a perfect dead level. Q. Now, I believe you suggested an inch in thickness in your thinnest place? A. An inch of cement? — I said an inch and a half or two inches; at this time that might be the average thickness. * * * Q. Mr. Wilson, as an architect, do you have an opinion as to the approximate cost of such surfacing per square foot? A. Yes, sir. Q. You may state what your opinion is. A. About ten cents a square foot for a cement surfacing, and about eighteen or twenty cents for the unicrete. Q. And how many square feet are there on each of these floors? A. About 21,000 square feet. * * *
Accordingly, this court determines that the defendant building company is entitled to an equitable deduction from the contract price in the sum of $4,200 because of the failure of plaintiff to conform to the terms thereof in the construction of the two floors in controversy.
Affirmed.