Thе instant appeal arises out of a contract entered into by and between the appellant, Larry T. Smith (Smith), a contractor, and the appellee Roger Erftmier (Erftmier) for the erection of a grain drying and storage complex to be located upon real estate owned *487 by Erftmier in a rural area of Keya Paha County, Nebraska. The appellee The Commercial National Bank of Ainsworth, Nebraska, is merely a stakeholder in this action, having received some $19,710 from Erftmier to hold pending the settlement of the dispute, and may, for purposes of this case, be disregardеd. Smith filed suit against Erftmier for the balance allegedly due on the construction contract. Erftmier denied that he was indebted to Smith in any amount and filed a counterclaim seeking damages based upon Smith’s alleged failure to construct the complex in a good and workmanlike manner and in accordance with the contract. Upon conclusion of a trial to the court, a jury having been waived, the trial court denied judgment to Smith on his petition. Further, the trial court entered judgment for Erftmier against Smith on Erftmier’s counterclaim in the total amount of $33,544.01 and ordered that the $19,710 held in escrow by The Commercial Nаtional Bank of Ainsworth, Nebraska, be applied on the judgment. We believe that the trial court was in all respects correct, and affirm the judgment.
The contract between Smith and Erftmier was entered into on August 29, 1977, and was, in form, a standard AIA Document A101. By its terms Smith was to erect for Erftmier four grain bins, two of which were identified as Butler brand grain bins and two of which were identified as Eaton brand grain bins. The references are to the names of the manufacturers of the bins. In return for the work to be done by Smith, Erftmier agreed to pay to Smith the sum of $109,500, payments to be in accordance with the contract. Attached to the contract and made a part of it was AIA Document A201, “General Conditions of the Contract for Construction.” By its terms Smith specifically warranted to Erftmier that “all Work will be of good quality, free from faults and defects and in conformance with the Contract Documents.”
Three of the bins were completed by November 18, *488 1977, and the fourth one was completed in January of 1978. The evidence discloses that bin No. 1, the Butler drying bin, was 36 feet in diameter and had an eave height of 25 feet 8 inches. The second Butler bin had a diameter of 42 feet and an eave height of 33 feet. The remaining Eaton bins had a diameter of 48 feet and an eave height of 26 feet 10 inches.
The evidence discloses that during the construction period Erftmier continued to make payment to Smith even though he had several problems regarding the construction. By the time of trial all of these matters appeared to have been cleared up with the exception of the two now remaining. Those twо items consisted of what Erftmier claimed was poor concrete work and inadequate footings and foundations beneath the bins. The evidence discloses that during the construction of the bins the contractor had in his possession a manual entitled “Grain Bin Erection Manual,” published by the Eaton comрany. The manual provided in part: “An adequate foundation is essential to trouble-free service from your grain bin.” It further provided that the foundation for the grain bin must be below the frostline. The evidence further disclosed that, rather than having foundations as indicated by the Eaton manual and as Erftmier’s expert would have required, bin No. 1 had no footings at all and bin Nos. 2, 3, and 4 all had narrow, shallow footings with what was designated as a “rat ring” going down about 18 inches.
Smith assigns a number of errors, but basically argues three. First, he maintains that when Erftmier took possession of the bins and started using them, he accepted the bins and waived any alleged default; second, Smith maintains that the trial court erred in not finding that proven local custom, tradition, and usage did not require the installation of footings in connection with the construction of the bins; and, finally, that the wrong measure of damages was used.
We turn first to the question concerning custom and
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usage. In the first place, Smith never pleaded the matter of custom and usage. Moreover, there is no evidence in the record that Erftmier had knowledge of the custom, if one existed, and contracted with reference to the alleged custom. The evidence, quite to the contrary, is that Erftmier did not reside in the area and had no knowledge of any alleged custom and usage with regard to the footings and the foundations. In
Fisher v. Stuckey,
But perhaps even more important in the instant case is the fact that the trial court permitted Smith to introduce all of his evidence with regard to custom and usage, though it was not admissible, and chose not to believe it. Smith called several witnesses, all of whom testified that local custom, usage, and tradition indicated that grain bins erected upon the sandy loam soil in north central Nebraska did not require footings below the frost level for either longevity of the project or economics of the project. Erftmier, on the other hand, called a witness who testified that he had been involved in the design of grain bins for both Butler and Eaton and had prepared and approved the ma *490 terial regarding foundation design found in the Eaton manual. He testified that the foundations for grain bins of the size at issue should have a spread footing below the frostline, and down 50 to 60 inches below thе ground.
At best, the question of whether footings and foundations were necessary was a question of fact. The trial court chose to believe Erftmier’s witness and disregard Smith’s witnesses. This was a matter solely within the discretion of the trial court sitting as a finder of fact, and a conclusion with which we have no authority to сhange. As we noted in
Koperski v. Husker Dodge, Inc.,
The second issue raised by Smith is that the trial court used the wrong measure of damages by allowing the cost of repair. The trial court found that the reasonable cost of repairing the defective work and constructing adequate footings and foundations was in the amount of $33,000. Smith argues that the cost of repair is a proper measure of damages only where the cost of repair is reasonable or where only a portion of an article is damaged and repairs are necessary before any of it can be used. He further claims that the rule is not applicable where the property cannot feasibly be restored to its original condition, and in such a case thе difference in the value of the property “before and after” is the proper measure of damages. We can easily dispose of that claim. In the first instance, Smith offered no evidence to support his claim that the property could not be repaired. Nor did he offer any еvidence as to the value of the property “before and after.” The only evidence offered by Smith was the cost of repair. His witnesses all testified that whatever defects may exist, they were minor in nature and could be repaired. He tried the case on the theory that the cost of repair was the proper measure of damages. We have frequently held that where a certain theory has been adopted and relied upon by the parties during the trial, such theory will be adhered to on appeal regardless of whether it is correct.
Rieschick Drilling Co. v. American Cas. Co.,
And, finally, Smith maintains that the trial court erred in not finding that Erftmier was precluded from claiming damages by accepting the bins and using them. This argument, of course, ignores the fact that at the time Erftmier accepted the bins he was not aware that the footings had not been properly constructed, nor was he aware that the bins would thereafter crack as, in fact, they did. The evidence discloses that the concrete work is irregular, and on bin Nos. 3 and 4 there are large gaps of up to 2 inches which would not have been remedied by sealing with tar. In addition, areas of spalling and cracking are present. These apparently have been caused by reason of the weight being placed upon the inadequate footings and foundations. While it is true that we have on occasion held that acceptance by one may preclude him from thereafter claiming a default, we hаve never applied the rule where the evidence discloses that the one accepting the product does not
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have knowledge of the default at the time he accepts performance.
Randall v. Erdman,
During the argument on the motion for new trial, Smith sought to offer in evidence a Butler manual which he claims would support a position that footings were unnecessary for the bins. The difficulty with Smith’s position is that it ignores several basic legal princiрles. In the first instance, Smith never claimed he was entitled to omit the footings because of the Butler manual, but, rather, because of local custom. Additionally, there is no evidence that Smith followed the Butler manual in erecting the bins. The manual would not have established either local custom
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or compliance with the contract, and therefore was irrelevant to that issue. Furthermore, Smith sought the introduction of the manual on the grounds of newly-discovered evidence pursuant to Neb. Rev. Stat. § 25-1142(7) (Reissue 1979). The record, however, supports the trial court’s position to the effect that the manual was in existence prior to trial and could have and should have been offered at that time. Smith has failed to meet any of the enumerated grounds entitling him to a new trial on the basis of newly discovered evidence. In
Jensen v. John Hancock Mutual Life Ins. Co.,
“ ‘Newly discovered evidence is not a ground for a new trial, where the exercise of due diligencе before trial would have produced it.’
Hardt v. Orr,
“Applications for a new trial are entertained with reluctance and granted with caution, because of the manifest injustice in allowing a party to allege that which may be the consequence of his own neglect in order to defeat an adverse verdict, and, further, to prevent fraud and imposition which defeated parties may be tempted to practice to escape the consequences of an adverse verdict.”
Having concluded, therefore, that Smith’s assignments of error are without merit, the judgment of the trial court is in all respects affirmed.
Affirmed.