13 S.D. 530 | S.D. | 1900
It is alleged in the complaint that plaintiff and defendant entered into a written contract by the terms of which plaintiff was to construct a dwelling for defendant according to certain plans and specifications, made a part of the contract, for the agreed price of 12,298; that under the provisions of the contract defendant ordered certain changes in the construction of the building, which w-ere made, and the building was completed
The contract contains this provision: “For and in consideration of the faithful performance of this contract on the part of the said Olaf Seim, and of the completion of said building by him, according +-o the plans and specifications, the said Charles Krause hereby covenants, promises and agrees to pay or cause to be paid to the said Olaf Seim, or to his legal representatives, the sum of two thousand two hundred and ninety-eight ($2,298.00) dollars, first payment of $500.00 to be made when the frame is completed; second payment, $500,00, when the roof and siding are on; third payment, $500, when the plastering is done; and the last payment when the building is completed, and accepted by the superintendent, and the keys turned over to the owner, and his acceptance thereof, with all bills receipted for all labor and material used in and about the erection and completion of said building.” It is alleged in the answer that a large number of bills for material contracted for by plaintiff in constructing the building were due and unpaid when this action was commenced, and plaintiff admitted upon the witness-stand that he paid $125 upon such bills three months after the commencement of the action. But whether the action
It is also provided in the contract “that, is case the said building shall not be finished and completed by the first day of October, 1896, as agreed on the part of the said Olaf Seim, then the said Olaf Seim shall forfeit and pay to the said Charles Krause the sum of 810 per day for each and every day which shall be required to complete said building after October the first, 1896, and the said amount of such forfeiture shall be deducted by said owner' from the amount due said Olaf Seim under this contract; provided, however, that no forfeiture shall accure under this section, if a delay be caused by fire, or such inclement weather so as to absolutely prevent the pro gress of the work.” Defendant.contends that the court below erred in charging the jury that this part of the contract is
• The contract contains the following provision: ‘-The contractor must carry on ' his work promptly. Should he fail or refuse to comply with the requirements )f the contract, plans, and specifications, it shall be the right of the superintendent, after giving two day’s notice in writing, to provide the workmen to finish the work; and the cost of the labor so provided shall be deducted from the amount to be paid the contractor.” Considering this clause in connection with other parts of the contract, we think it should be held to modify the general rule as to substantial compliance to the extent of requiring two days’ notice in writing of any defects before the defendant is entitled to any reduction or damages therefore, and that he should be allowed reduction only for such defects as are mentioned in the written notice.
Plaintiff was required to and did serve a bill of particulars of the items constituting his cause of action. Whether or not this bill of particulars should be regarded as a part of the complaint, it'was clearly not admissible as evidence on the part of the plaintiff in support of his cause of action. The judgment of the circuit court is reversed, and a new trial ordered.