Linebaugh v. Townes , 9 Mich. App. 185 ( 1967 )

9 Mich. App. 185 (1967) 156 N.W.2d 39

LINEBAUGH
v.
TOWNES.

Docket No. 493.

Michigan Court of Appeals.

Decided December 7, 1967.

Crippen & Dever, for plaintiff.

John W. Rae, for defendants.

J.H. GILLIS, J.

Plaintiff-builder sued defendants-owners for the balance allegedly due on a home building contract. The defendants counterclaimed on the grounds that the contract was not completed and, additionally, that a portion of the completed work was not performed in a workmanlike manner, which required the defendants to have corrections made. A nonjury trial resulted in judgment for the defendants. Following a motion filed by the plaintiff to amend the judgment or grant a new trial, the defendants stipulated as to certain credits and the court denied the plaintiff's motion but allowed the stipulated credits, leaving a balance due defendants of $1,275.07 plus costs. Plaintiff appeals.

The sole issue raised on appeal is whether the defendants are entitled to a credit against the construction contract of an amount equal to 10% of the total contract.^[*] This issue arises from plaintiff's claim that the court erred in crediting defendants with 10% of the contract price after having allowed the defendants credit for items of work not performed in a workmanlike manner. Plaintiff contends that in effect the trial judge allowed the defendants double damages. This claim can be established only by demonstrating that the 10% credit given for the portion of the contract not completed already had been accounted for in the credit given for items of improperly performed work.

The trial judge made specific findings of fact not questioned by plaintiff. A review of the record, including the findings made by the trial court, does not persuade us that the court was clearly in error. GCR 1963, 517.1.

Affirmed. Costs to appellees.

LESINSKI, C.J., and QUINN, J., concurred.

NOTES

[*] At trial the county building inspector testified that the building, according to the plans and specifications, was approximately 90% completed by the plaintiff.