Wood v. Smith ( 1922 )

Per Curiam.

The plaintiff entered’ into an oral contract with the defendant whereby he agreed to construct for the defendant a house substantially similar to another house which had been pointed out to the defendant and was owned by the plaintiff, for the sum of $3,700, and also to execute the woodwork for a brick garage for the further sum of $400. Prior to the making of this contract the plaintiff had figured on the specifications of a house at the request of defendant, and gave him an estimate of $6,700 as the cost thereof. Plaintiff thereafter entered upon the performance of his contract with defendant. When the framework of the house was up, defendant requested plaintiff’s foreman in charge of the job to thereafter follow the requirements of a certain set of specifications, which was done. These specifications were substantially like those submitted to plaintiff which elicited the estimate of $6,700 above named. Certain additions and modifications were afterward made at defendant’s direction, which involved more work and more aiid better material than was provided for in the original agreement under which said house was being constructed. By following the directions of defendant, plaintiff was put to great additional expense for labor and materials, resulting in the erection of a house radically different from that contemplated in the original oral contract. The trial court found the plaintiff’s damages, with interest, amounted to the sum above named, and gave judgment therefor.

Defendant, appellant, assigns certain errors which are not manifest unless the finding of the court be radically changed. Out of sixteen paragraphs of the finding by the trial court, seven are challenged by the appeal of the defendant as having been found without evidence. As to all of those paragraphs the evidence was conflicting, and the finding of the court is sustained by evidence supporting the same, with one exception. In the fourth paragraph of the finding, the statement is made that the agreed price for the work and materials upon the building was $3,750. It is admitted in the pleadings that this price was $3,700, and the court should have so found. So far as the testimony is concerned, the figure is repeatedly given in evidence as $3,750, and that amount also appears in the bill of particulars* which probably misled the trial court. This paragraph of the finding should be corrected by substituting $3,700 for $3,750. This correction reduces the proper amount of the judgment by the amount of $50 and interest thereon to the date of judgment heretofore rendered, making a total deduction of $71.83.

Defendant’s draft-finding contains twenty paragraphs, eighteen of which he claims were supported by uncontradicted evidence, and should be added to the finding of the court in place of the paragraphs of the finding to which exception is taken as above stated. None of these paragraphs are supported by uncontradicted evidence, except as to such facts appearing therein as are also included in the finding of the court, except as regards the error in amount above stated.

The appeal is in effect an effort to strike out all of the finding of the court as to matters vitally in issue upon the pleadings, and to substitute for the part stricken out all but two of the paragraphs of the de-' fendant’s draft-finding. It is virtually an attempt to retry the case in this court on its facts under guise of correcting the finding made by the trial court upon every essential issue in the case.

There is error and the case is remanded to the Superior Court with direction to enter judgment for the plaintiff for $5,092.34 as of the date of the original judgment.