77 N.W.2d 475 | Iowa | 1956
The question in the case at bar concerns the rule of substantial performance of building contracts. Plaintiff is a corporation engaged in the business of plastering and applying prepared siding materials. It is the latter activity which is involved here. An oral contract between plaintiff and defendants stipulated that plaintiff should apply new siding composed of a preparation known as Quikbrik to defendants’ home in Des Moines, at an agreed price. After the work was completed, defendants paid $1000 to apply upon the amount agreed; but later they refused to complete the payments, contending that the work had not been done in accordance with the contract. The major dispute concerns the color of the siding, which defendants say is not in accord with the agreement. There is also some evidence of cracks appearing in the finished job, but it seems clear these can be remedied without great expense, and the defendants do not seriously contend otherwise. These cracks are not defects serious enough' to show a failure to comply substantially with the terms of the contract, and we shall devote no further attention to them.
I. It is the alleged failure of the Quikbrik preparation to comply with the agreement as to color which defendants say is
Defendants say that the finished job did not match the sample chosen, No. 10, which was apparently a dark red. It is their contention that the color is not uniform, but is mottled; that white spots and discolorations appear, and that different shades appear at each point a new “batch” of the mixture was applied. The plaintiff, after complaint was made, attempted on two or three occasions to satisfy defendants by washing the house with a mixture containing muriatic acid, but defendants say the results were not permanent or satisfactory, and they now have a house whose color is not what they bargained for and is not pleasing to the eye.
Quikbrik is a preparation whose base is pulverized or ground brick. It is a “mix.” Its use was new in Des Moines at the time, in the summer of 1952, that the agreement between the parties was made. Some weeks after the job had been completed, defendants paid by check $1000 to apply upon the agreed price of $3300; but later they refused to make further payments. The plaintiff also claimed $63.30 for extras and gave the defendants additional credits totaling* $286.09; so that its statement for a mechanic’s'lien showed total charges of $3363.30, less credits of $1286.09, or a net alleged to be due of $2077.21. The trial court found there had been substantial compliance with the contract, but that defendants were entitled to a deduction of $250 as the reasonable cost of repairing cracks and remedying discolorations; and to further credits of $150 and $25 for items not connected with the controversy involved in the litigation, or total deductions of $425. Foreclosure of plaintiff’s mechanic’s lien was decreed to make the sum of $1652.21, with interest and costs.
II. Defendants say that the failure of the color scheme; —the alleged difference between the color chosen and that ap
“ ‘Substantial performance’, as defined by the eases, permits only such omissions or deviations from the contract as are inadvertent or unintentional, are not due to bad faith,- do not impair the structure as a whole, are remediable without doing material damage to other parts of the building in tearing down and reconstructing, and may without injustice be compensated for by deductions from the contract price. So much is allowed in building contracts because of the hardship to the contractor if slight, unintentional deviations should bar his recovery.”
See also Stratmeyer v. Hoyt, 189 Iowa 85, 90, 91, 174 N.W. 243, 245. We cited with approval the rule as laid down in these cases in Huffman v. Hill, 245 Iowa 935, 938, 939, 65 N.W.2d 205, 206.
There can be no fair question that any deviations from the agreed color scheme here were unintentional and were not due to bad faith. There is no contention that they impair the structure as a whole, except in the matter of sightliness. The building performs its function of furnishing shelter and a home for defendants; they have the benefit of the improvement made by plaintiff, and if it were to be held there had not been substantial compliance they would have this without paying therefor, except for the sum of $1000 and the credits of $286.09. Here it is somewhat significant that defendants do not ask for a return of these sums; yet if they are correct in their contention that plaintiff
It should be said that defendants claim also that the color rubs off upon contact; but this is denied and we think the source of the complaint is satisfactorily explained. Returning to the question of substantial compliance, we find that defendants’ witness T. Floyd Sanders, a bricklayer, while telling of the discolorations, also said: “I would say that the job * * * is mechanically good * * He also testified: “I did not find anything wrong with the workmanship on this particular job except when it was washed * * * I would say as a Quikbrik job I would pass the job any time, mechanically.” He also said that with ordinary brick the colors will vary “from what we call a cherry red to a red powder color. That is not unusual in brick.”
Zygmunt S. Mayer, a witness for plaintiff, said that he had been in the Durabrick business for ten to fifteen years. Durabrick is a process similar to Quikbrik. He had had business dealings with the defendants, selling them aluminum doors and windows. He was familiar with their home, frequently going by it. He did not make a close examination of the house, but it looked all right to him. “The material and the seal is perfect, the cutting is all right. Passing by, I didn’t see any unusual discoloration. No discoloring, some fading. They all fade. All my thirty applications had fading too. It fades a little bit but that is nothing unusual. * * * It is nothing abnormal there.” This witness also said there is no color problem that cannot be corrected. In this connection it should be noted that after plaintiff had attempted twice to comply with defendants’ complaints about the color by washing it, further efforts along that line were forbidden.
The trial court, for the purpose of clearer understanding of the evidence and at the request of defendants, viewed the prem
It was also noted by the trial court that the plaintiff had used the house, after the completion of the job and before this controversy arose, in its advertising for the purpose of securing additional Quikbrik business. An advertising sign was, by agreement with defendants, placed on their lot adjacent to the house, proclaiming to the world the virtues of Quikbrik as exemplified by defendants’ home. Self-protection, would have prevented this advertising by the plaintiff if the defects had been serious.
The defendants rely considerably upon Gosson v. Witt, 167 Iowa 247, 149 N.W. 274, and Connor v. Trapp, 127 Iowa 742, 104 N.W. 333. Both of these were well-drilling cases, and in each it was held there was not substantial compliance. They do not touch the point at issue here. In the Gosson case the court said the pipe as inserted would furnish water for only a comparatively short time; and in Connor v. Trapp it appeared the well did not furnish good, clear water, which was required by the contract. The very object of the agreement was defeated in each case. Here, while appearance is of course important, all other purposes have been accomplished; and even as to the color we agree there has been substantial compliance.
Our recent case of Huffman v. Hill, supra, contains much of interest in the case at bar. Following Lautenbach v.
We find no such defects shown in this record. The trial court made a fair allowance for correction of the cracks and whatever might be amiss with the color scheme. The familiar rule that we give weight to the findings of fact of the trial court where the evidence is in dispute (see Huffman v. Hill, supra, page 938 of 245 Iowa, page 206 of 65 N.W.2d) comes into play here. We think it particularly applicable under the circumstances of this case, where the major dispute concerns color and discoloration and the court had the opportunity to observe the house and so gain a much better understanding of the evidence than we could have. Its conclusions and judgment are in accord with the facts shown by the record. — Affirmed.