198 P. 261 | Utah | 1921
Lead Opinion
Plaintiff commenced this action in the usual form for the foreclosure of two mortgages given by defendant on city lots situated in Ogden, Utah, to secure the payment of two promissory notes dated November 4, 1914, aggregating a total sum of $13,000. The first of said notes, for $8,000, was made payable on or before 10 years after date in installments of not less than $60 per month in addition to the interest at 8 per cent, per annum from date, and the second, for $5,000, was made payable 10 years after date, with interest at 8 per cent, per annum from date. Interest on both notes was payable quarterly.
It was alleged in the complaint that the plaintiff is the owner and holder of the mortgages by assignment, and, as grounds for foreclosure, that the defendant had defaulted in the payment of interest due on the notes and the insurance and taxes on the mortgaged premises as stipulated
The defendant, after denying certain allegations of the complaint, as special defenses thereto pleaded affirmatively: That on or about the 4th day of November, 1914, when said notes and mortgages were executed and delivered, one W. J. Stephens, an uncle of plaintiff, for and in consideration of the $13,000 for which said notes and mortgages, were given, agreed to erect on said city lots, as per plans of F. C. Wood, an architect, a two-story apartment house according to certain specifications as in said agreement provided; that it Was also provided in said agreement that the said W. J. Stephens should pay off a mortgage of $650 then existing on said city lots, and that said Stephens also at said time orally agreed to move a dwelling house situated on said lots from the front to the rear thereof, and make certain repairs or improvements on said dwelling; that it was also agreed on the part of the said W. J. Stephens, as contractor, that the interest payments and payments on the principal sums of said notes should not begin until 90 days after the completion of said building; that the said W. J. Stephens willfully refused to complete said building; that the same has never been completed and now remains in an uncompleted state, and that both workmanship and materials on said building were defective and inferior from that called for under said contract; that said Stephens has refused to complete the same or substantially comply with his said contract after repeated demands made by the defendant for him to do so; that plaintiff took and acquired said notes and mortgages with notice and full knowledge of the equities existing
Further answering tbe complaint, tbe defendant pleaded that on tbe 19th day of December, 1917, in an action then pending in the district court of Weber county, Utah, wherein tbe plaintiff herein was tbe plaintiff and tbe defendant herein was defendant, for tbe foreclosure of tbe said mortgages and upon tbe subject-matters of this action, it was adjudged and determined in said action that tbe plaintiff take nothing by his complaint, and that said action be, and tbe same was, dismissed accordingly; that after an appeal to this court was taken from said judgment said appeal was dismissed, and that thereupon said judgment of said district court thereby became final. Defendant also moved to strike certain allegations of tbe complaint with respect to performance on the part of the plaintiff of all things required of him by law or otherwise, and also the allegations with respect to grounds for a receivership, which motion was granted by the court.
Plaintiff assailed the defendant’s answer, with a demurrer both general and special, the latter upon the grounds that the answer was unintelligible and uncertain in this:
“That it cannot be ascertained from said answer what, if any, amount of damages defendant has sustained, or in what manner or how the building in said answer mentioned is' incomplete, or is in an uncompleted state, in what manner or how the workmanship therein is defective, or what materials were inferior in quality or the value thereof, or in what manner or in what way, or the value thereof, that the defendant was to be or was cheated or defrauded by any act in said answer stated.”
The demurrer was overruled. A reply to' the answer was filed by the plaintiff, in effect denying all the material allegations of the answer, and also affirmatively alleging that since the alleged former adjudication of the case by the district court the contractor, W. J. Stephens, had offered to complete said building in the manner and as defendant desired the same completed, but that the defendant had refused to permit the same to be done.
Upon the trial the issues were found in defendant’s favor
1. We think the first assignment of error relied upon by the plaintiff, the sustaining of defendant’s motion to strike certain allegations of the compláint, is wholly without merit. Plaintiff’s complaint was founded upon the defendant’s failure to observe and comply with the terms and conditions of a mortgage. No duty of performance of a condition precedent rested upon the plaintiff under the terms and conditions of the notes and mortgages sued upon, and therefore it, Was mere surplusage for the plaintiff to allege in
So, too. were the averments as grounds for the receivership mere surplusage, and therefore properly stricken. These allegations, in substance and effect, were that the defendant had been in receipt of’rentals for apartments which she had not applied to the keeping of the covenants and agreements of the notes and mortgages. No such duty devolved upon the defendant under the terms and conditions of either the notes or mortgages attached to and made a part of the complaint; nor was any such duty shown or alleged at all by the complaint. While it is true the answer of the
The next error complained of by plaintiff, that of overruling his demurrer to the answer, presents a more serious question. The demurrer, as has been pointed out, was both general and special. Undoubtedly the answer stated a defense and was not vulnerable to a general demurrer. Therefore plaintiff’s demurrer, on the first ground stated by him, was properly overruled by the court. However,
As illustrative of the insufficiency of the answer relied upon by the defendant to defeat the demands of the complaint, it is charged that the plaintiff in taking the notes and mortgages sued upon had knowledge of a certain agreement entered into between W. J. Stephens, as contractor, and the defendant, as owner, whereby said'Stephens, as a consideration for said notes and mortgages, w*as to erect an apartment house for the defendant “as per plans drawn by F. C. Woods, architect,” and as per specifications in said contract set forth. This agreement also provides “that inter
3. Lastly, the plaintiff complains of the insufficiency of the evidence to support the findings and judgment of the trial court and that the judgment or decree dismissing the action is contrary to law. It appears as admitted facts in the record that upon the 4th day of November, 1914, the contract mentioned and set forth in' the answer was entered into between W. J. Stephens, a contractor and builder, and the defendant; that at the time the notes and mortgages sued upon by plaintiff were given to secure the contract price of
It further appears, although not without some conflict in the evidence, that after the dismissal of said appeal to this court the contractor, W. J. Stephens, on or about May 26, 1919, took another contractor and builder to the building and had the defendant point out in what particulars she complained of the building not being completed according to contract. Thereafter said Stephens sent workmen to the building for the purpose of completing it in the particulars defendant had claimed and pointed out that it was incomplete and defective; but defendant refused to permit any repairs to be made or any work to be performed, although an offer was made to complete the building as desired by defendant. Some of the witnesses testified that the workman
In the particulars complained of by plaintiff the trial court made findings to the effect that the contractor, W. J. Stephens, willfully refused to complete said building and on or about September 1, 1915, abandoned the same and all work thereon, and never substantially completed the same in accordance with specifications, but “knowingly and willfully departed therefrom in material parts and that the work done thereon was very defective and the materials used of inferior quality; that the defendant took possession of the building without accepting the same and thereafter made demand upon said W. J. Stephens from time to time to complete said building according to said agreement which he afterwards refused to do; that the plaintiff took said notes and mortgages with knowledge of the said contractor’s failures and refusals, but paid to said contractor a consideration of $10,000 for said notes and mortgages, with knowledge that they were not to be paid for a period of 90 days after
Before proceeding to discuss the sufficiency of the ' evidence to support the findings made and the judgment rendered by the district court it may be well to first consider the contention made by the defendant that the judgment rendered by the district court in the former case w'as res judicata and was a final determination of the issues involved in this action. The defendant insists that the former judgment was not only sufficiently pleaded, but absolutely supported by proof; that the parties to this action are the same, the pleadings practically the same, the subject-matter identical, and practically the same findings, conclusions of law and judgment as in the former action. Nevertheless we think the record of the former case conclusively shows that the adjudication then made by the court was not upon the merits and determinative of one thing only, that the suit had been prematurely brought. If a judgment, for
The court in the former action, as the record thereof clearly
This case, in many of its aspects, is a most peculiar one, and presents many difficulties in attempting to arrive at the legal rights of the respective parties. The plaintiff seems to have proceeded in the trial on the theory that he was entitled to a full recovery of the amounts agreed upon and stipulated for under the terms and conditions of the notes and mortgages held by him, regardless of the admitted fact that he took them with notice. The defendant’s theory seems to be that the building was not substantially completed, that the workmanship upon the building was bad, and the materials entering into its construction so inferior that no recovery on the notes and mortgages can be permitted at any time or at all. ¥e may remark that one of the greatest difficulties to contend with is how to determine from this record just what class of workmanship and materials are required to satisfy the contract entered into between the contractor and the defendant The contract pleaded by the defendant,
In the present ease, about all the contract calls for in the way of building is a two-story apartment house. The end contracted for seems to have been attained, although, from the standpoint of the defendant, not very satisfactorily. She complained of, and we think successfully proved at the trial of this case that the heating apparatus was inadequate to properly heat the building and that the roof badly leaked. According to the evidence, these defects were remedied by her at her own expense. Some other details of faulty workmanship and inferior materials used were testified to by the witnesses in defendant’s behalf, but to what extent the contractor departed from the specifications with respect thereto was neither pleaded nor proved. In this class of cases the law contemplates a substantial compliance with the plans and specifications; that any structure should be so substantially erected and completed as to subserve the purposes and uses for which it is intended. Otherwise, the owner is not required to accept it and pay the Contract price. It Would be idle to review the modern decisions of the courts in this or other jurisdictions, with a view of applying the principles of law or equity announced therein to the facts and circumstances disclosed by this record. "We may remark, however, that in this class of cases the trend of decisions in recent years has been to hold that there must be a substantial, not a punctilious, performance of builder’s contracts. So, too, it is generally held that on the one hand the contractor may not be permitted to profit by reason of his. noncompliance with contract, while on the other hand
While defendant in the present case, since September, 1915, has been in the use and enjoyment of the building, that, in and of itself, does not amount to the acceptance of faulty workmanship or inferior material. Under such circumstances she is entitled, by way of recoupment,
It is undisputed that plaintiff took the notes and mortgages with notice of the contract while the building was in course of construction. So far as the evidence shows, he in good faith paid- to the payee of the notes approximately $10,000 for the transfer of the notes and assignment of the mortgages. Notice of the contract, in our opinion, however, did not charge him with the willful neglect
Taking into consideration the situation of the parties, and the facts and circumstances surrounding them since the former judgment in this case, we are of the opinion that the defendant may not be heard to say in a court of equity that the notes and mortgages are not now due and owing and that no foreclosure can be had at this time. Under our statute (Comp. Laws Utah 1917, § 7230) there can be but one action for the recovery of any debt or the enforcement of any right secured by mortgage on real estate. Coburn v. Bartholomew, 50 Utah, 566, 167 Pac. 1156. It must therefore be held.that the plaintiff in this case adopted
For the reasons stated, the judgment of the trial court, dismissing plaintiff’s action, is reversed, vacated and set aside. Let the cause be remanded to the district court with directions that the plaintiff be granted a new trial, that plaintiff’s special demurrer to the defendant’s answer be sustained, and defendant permitted to make amendments thereto, counterclaiming for damages in accordance with the views herein expressed. Appellant to recover costs.
Concurrence Opinion
I concur in tbe conclusions of the CHIEF JUSTICE. I feel constrained to add, however, that, while I am thoroughly convinced that the rule adopted by the courts that in actions on building contracts the contractor should not be permitted to recover on the contract, unless he shows that he has, substantially, at least, complied with its terms and conditions is just, sound and wholesome, yet I am also convinced that, where the action is in equity and it appears that the owner of the building is using it, and is benefited by its use, and where the damage for, defective materials and improper workmanship can be ascertained and adjusted between the parties, relief in toto should not be denied. Courts of equity are not created to enforce penalties, but they were called into existence to ascertain and preserve rights and to administer the law in accordance with the dictates of conscience, and so as to reflect equity and justice between the parties. Where, therefore, the owner of a building or structure in question can apply, and does apply, it to the use for which it was intended, and the damage which arises by reason of improper workmanship or defective materials can be ascertained and fixed in accordance with the established rules of evidence, the courts should not deny the contractor a right to recover, but should permit him to recover what, in view of the facts and circumstances, is equitable, just, and right. Such an adjustment cannot injure any one and tends to maintain the respect for the law which is so essential in all governments.
This case affords a striking example of how injustice might result from denying the contractor any relief whatever. In this case the defendant is in fact enjoying the labor and materials furnished by the contractor, and is receiving an income from the building; yet, if this judgment is to prevail, she may do so without making any compensation therefor whatever. Moreover, it appears from the record that the contractor, with his ow|n money, paid off and had discharged a mortgage which was a lien on defendant’s prop