191 Iowa 645 | Iowa | 1921
Plaintiff’s petition is in two counts. In Count 1 thereof she alleges that Sidney S. Sweet, decedent, on April 18, 1902, entered into a written contract with the defendant, J. F. Atkinson, by the terms of which the defendant agreed
The two counts of plaintiff’s petition are identical, except that it is alleged in Count 1 that due notice was given to the defendant of the filing of the claim for damages against the plaintiff, requesting him to make defense thereto. The defendant, for answer, admitted the execution of the contract and the erection of the building, and averred that same was constructed in all respects according to the contract and the plans furnished him, and that, after the completion thereof, it was inspected and accepted by the owner; and denied all of the remaining allegations of the petition.
It is the contention of counsel for appellant that, but for certain erroneous rulings of the court, excluding material evidence offered by plaintiff, her cause of action and right of recovery against the defendant for fhe full amount of the several items above enumerated would have been conclusively proven. The particular evidence excluded by the court upon the objection of defendant’s counsel, of which plaintiff complains, was the architect’s complete original plans for the building; a certified copy of the finding and judgment in probate of the claim of the administratrix of the estate of Walter H. McNulty
The law is well settled that, where one who is secondarily liable is compelled to respond in damages to the injured party, he may recover the amount paid from the person primarily liable. Pfarr v. Standard Oil Co., 165 Iowa 657; Pfarr v. Standard Oil Co., 176 Iowa 577; City of Des Moines v. Des Moines Water Co., 188 Iowa 24; Westfield G. & M. Co. v. Noblesville & E. G. R. Co., 13 Ind. App. 481 (41 N. E. 955); City of Seattle v. Regan & Co., 52 Wash. 262 (100 Pac. 731); Costa v. Yochim, 104 La. 170 (28 So. 992); Baltimore & O. R. Co. v. County Commissioners, 113 Md. 404 (77 Atl. 930); Hobbs v. Hurley, 117 Me. 449 (104 Atl. 815); City of Louisville v. Louisville R. Co., 156 Ky. 141 (160 S. W. 771); Eaton & Prince Co. v. Mississippi Val. Tr. Co., 123 Mo. App. 117 (100 S. W. 551); Frankenthal v. Lingo, 16 Tex. Civ. App. 229 (40 S. W. 815); Robbins v. Chicago, 4 Wall. 657 (18 L. Ed. 427); Boston W. H. & R. Co. v. Kendall, 178 Mass. 232 (59 N. E. 657); Oceanic S. Nav. Co. v. Compania Trans. Esp., 134 N. Y. 461 (31 N. E. 987); Astoria v. Astoria & C. R. R. Co., 67 Ore. 538 (136 Pac. 645).
This rule, however, rests entirely upon the proposition that, as between two persons, both of whom are liable to the injured party for damages, there is a primary and secondary liability, they not being joint tort-feasors and in pari delicto as to the wrong causing the injury. It is also well settled that, where an action for damages is brought against a party secondarily
The evidence shows that some attempt was apparently made by plaintiff to give notice to the defendant of the filing of the claim for damages against the Sweet estate; but the record does not disclose the contents nor the purport thereof, and the defendant, called as a witness by plaintiff, denied that any notice was served upon or received by him. The giving of notice was not, however,'a condition precedent to plaintiff’s right of recovery (Pfarr v. Standard Oil Co., 165 Iowa 657, Pfarr v. Standard Oil Co., 176 Iowa 577, and cases cited supra); but, in the absence of proof of notice, the defendant was a stranger to the judgment, which was, therefore, wholly unimportant, save as bearing upon the question of plaintiff’s damages. Pfarr v. Standard Oil Co., 176 Iowa 577. Furthermore, the issue of negligence in the original construction of the cornice by the contractor, and the issue of negligence in the maintenance thereof by the owner, were submitted to the jury. The particular act of the defendant complained of in the present action was his failure to use metal ties or bonds for the purpose of holding or permanently securing the cornice in position. It is conceded that no metal or other ties were inserted, or built into the cornice, but it is claimed by defendant that a concrete coping was placed on top of the cornice for the purpose of holding it in place. Some testimony was elicited by counsel for defendant from plaintiff’s witness upon cross-examination, from which an inference might be drawn that water and snow accumulated on the roof of the building and in crevices about the cornice, and, by
So far as the offer by counsel of th'e transcript of the evidence upon the trial of the original claim for damages is disclosed by the record, there is nothing to indicate that the evidence introduced upon said trial, as shown by said transcript, did not tend to establish both issues of negligence. The defendant was liable only for such damages, if any, as proximately resulted from his negligence in the construction of the cornice, and the judgment would be conclusive against him, if a proper notice was served, in the event that it was shown that it was based solely upon such negligence. Manifestly, the court should not have permitted the jury in the case at bar to speculate upon the record in the former trial as to which of the two grounds of negligence charged, the jury in that case based its verdict upon. Pfarr v. Standard Oil Co., 165 Iowa 657; Pfarr v. Standard Oil Co., 176 Iowa 577.
The transcript was, therefore, so far as the record discloses, properly denied admission. As there was no other evidence tending to show that the verdict of the jury in the former trial was based solely upon the negligence charged against the defendant, the exclusion by the court of the certified transcript of the record and of the several sums expended by plaintiff, as set forth in her petition, was without prejudice. It is manifest that plaintiff did not make out a case for reimbursement from the defendant.
The only other evidence introduced by plaintiff for the purpose of proving damages was that showing that plaintiff paid a brick mason $50 to rebuild the damaged wall and cornice. This occurred more than seven years after the building was completed and’accepted by Sweet. Whether the true measure of plaintiff’s damages was the cost of altering and reconstructing the cornice at the time the building was erected, or the difference in its value as -it was when constructed and its value if it had been constructed according to the plans and the contract in a workmanlike manner, is not material. The evidence does not show what portion of the cornice it would have been necessary to remove, if any, to overcome the alleged defects in its construction. Evidence of what it cost to restore the wall and cornice