Las Vegas Development Co. v. Neighbors

BARNARD, P. J. This is an action for damages. Under a contract dated September 23, 1943, the defendant agreed to install the concrete curbs on a certain tract in Las Vegas, Nevada, upon which the plaintiff was engaged in building houses. It was provided that the work should be done under the supervision of the city engineer and according to city specifications, but nothing was said as to when it should be done. The contract was entered into at San Diego, where the defendant and the officers and managers of the plaintiff resided.

The plaintiff was to grade the streets and get them ready for installation of the curbs. It proceeded with the building of houses but delayed this preparation of the streets. Finally, in May, 1943, it notified the defendant that it was ready for his work. After taking his men from San Diego to Las Vegas he found that the streets were not ready but after a short delay some of them were made ready. He installed curbs on such streets as were ready, this work being completed about June 1, 1943, and was paid $1,250 on account. About five months later the work he had done was condemned by the city engineer, and this action followed.

The complaint alleged that these curbs were so poorly constructed that it was necessary to replace them; that the work was condemned “by the proper inspectors overseeing said work,” and had to be torn out at a cost of $976; that the plaintiff was compelled to expend, for “reinstalling and rebuilding said concrete work,” $1,942.60 more than the contract price therefor; and that in tearing out and replacing this work, [844]including the delay thus caused, the plaintiff suffered other amounts of damages.

The court found in favor of the defendant, and the plaintiff has appealed from the judgment upon a clerk’s transcript and a settled statement.

It is first contended that the evidence is insufficient to support the findings to the effect that the completed portion of the work was properly performed, in accordance with the terms of the contract, and that the subsequent condemnation of this work was not chargeable to the respondent. The court found that the concrete mixture used was of the character required by the contract, and that the mixing of the materials and the installation of the curbs was done under the supervision of and approved by the city engineer. It was further found that any deterioration in the cement work, resulting in its condemnation some five months after it was installed, was due to the negligence of the appellant and not to any fault on the part of the respondent.