Goldberg v. Underhill

DORAN, J.

The plaintiff-respondents, a physician and dentist respectively, contracted with the defendant-appellant H. W. Underhill, a licensed architect and contractor, for the construction of an office building. The complaint herein contained three causes of action, and claimed damages resulting from (1) defective plans negligently prepared by defendant; (2) defective construction supervised by the defendant; (3) fraud and misrepresentation in respect to the cost of the proposed building, etc. The trial court found in favor of plaintiffs as follows: $1,000 damages in respect to the first cause of action; $3,000 damages on the second cause of action; $1,000 damages on the third cause of action. The defendant has appealed from this judgment.

The appellant’s brief avers that “the plaintiffs did not sustain their burden of proof in any of these respects,” and that “Practically all of the plaintiffs’ evidence was directly controverted by one or more witnesses on behalf of the defendant.” Appellant maintains that “Where an architect draws plans under a written contract, he is not Rabie for damages allegedly caused by either (a) a decision by the owners arrived at during construction, that they do not like the location of a lavatory or toilet, or (b) a change from the plans necessitated because a certain kind and size of air conditioning unit could not be obtained.” It is likewise claimed that a contractor is not liable for damages caused by deviations from the plans ordered by the owners; that an unambiguous written contract cannot be altered “by verbal conversations or alleged verbal agreements occurring prior to its execution. ’ ’ On the issue of fraud, it is claimed that the trial court erred in not permitting the defendant to prove that plaintiffs had actually received in value much more than the amount paid out, and therefore suffered no loss.

The argument that the trial court “seemingly gave more credence to the testimony of the medical profession than to the testimony of these men of the construction trade itself,” and that there were “13 expert men who directly and unequivocably refuted the claims of the plaintiffs as to poor

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workmanship or poor materials,” goes, of course, to the weight and credibility of the evidence It is fundamental that, where the record discloses substantial evidence in support of the findings, an appellate court will not weigh the evidence or consider whether the trial judge should not, perhaps, have arrived at a different conclusion. That the evidence herein was in conflict as to various points goes without saying; nor can it be denied that the record affords substantial evidence in support of the trial court’s findings.