Norton v. Meyers

LANDIS, J.,

pro tem.

This is an action on a promissory note in the sum of $2,185, given plaintiff as part of the consideration of his agreement to perform a building contract.

In her answer defendant alleges that by reason of the failure of plaintiff to complete the work within the time and as provided by the agreement the consideration for the note wholly failed, and in her cross-complaint asks damages against plaintiff in the sum of $2,925 for failure to perform the building contract and by reason of defective construction and material furnished by plaintiff.

[177]

The trial court found that plaintiff has substantially performed the contract and that changes necessary to make the work conform to the agreement could readily be made, and gave judgment against defendant for the amount of the note, less certain allowances for changes in the work performed by plaintiff, to make the same comply with the agreement, detriment caused by failure to perform, for which plaintiff was not at fault, and a sum certain for failure to complete the work within a reasonable time. The amount of allowances made by way of recoupment, aggregating the sum of $850, covering the following items: $100 for damages for failing to complete the contract within a reasonable time and $750 because of deficiencies in construction of the building.

Defendant appeals, and for a reversal of the judgment relies upon and urges the following two points, viz.: First, insufficiency of the evidence to sustain the finding to the effect that, in certain enumerated respects, the work performed and materials furnished by the plaintiff to the defendant were not in accordance with the contract between them, as a result of which the defendant sustained a loss of $750, to be deducted from the amount sued upon. Second, insufficiency of the evidence to sustain the finding to the effect that the building and work as finished by plaintiff was completed substantially in accordance with the agreement between the parties.

In support of the first point urged, appellant contends that the testimony of the witnesses Howard, Brown and Johnson, to the effect that, in their opinion, it would require approximately $2,000 to remedy the defects and make the necessary changes in construction and materials in the building erected by respondent, is in no way contradicted ; and that as respondent did not introduce any testimony in contradiction of the testimony of these witnesses there is no basis for the finding that $750 would in fact .be sufficient to remedy the" defects and compensate appellant; that it is not a case of conflict of evidence, but simply a case where there is no evidence in conflict with the defendant’s testimony in this regard. With this contention we are unable to agree. Upon an examination of the entire record it appears to us that this is a case where there is a substantial conflict in the evidence. For instance, and without reviewing the entire testimony, it quite clearly appears that the