Fullerton Lumber Co. v. Reindl ( 1983 )

FOSHEIM, Chief Justice.

Fullerton Lumber Company (appellant) sued Lloyd Reindl (appellee) for money owed; appellee counterclaimed and recovered damages for death loss of pigs due to a leaking roof on a farrowing barn Fullerton built for him, for the cost of repairing the roof, and prejudgment interest on both awards. Fullerton appeals. We affirm in part, reverse in part and remand.

The first issue is whether certain trial court findings are clearly erroneous. The trial court found that appellee asked appellant if it could build him a pole barn with a calf shelter-type flat roof to be used mainly for farrowing pigs.¹ The trial court found that appellant, through its manager, Don Werley, told appellee that snowloads on such a roof might cause problems, but otherwise he was not concerned about the design.² The trial court found that appellant approved the design and construction of the farrowing barn and agreed to build it for appellee and that Mr. Myron Lang, who had done construction work for appellant during the past ten years, was engaged by appellant to build the barn in late 1975 or early 1976.³ The trial court found that by virtue of the contract appellant warranted that the barn would be built in a workmanlike manner and that it would be suitable for farrowing pigs. The trial court found, however, that the warranty of fitness was materially breached because the roof leaked due to faulty design. Although appellee claimed damages for dead pigs from the first farrowing in the Spring of 1976, to the time of trial in 1981, the trial court determined that appellee should have mitigated his damages after the Spring of 1977. The trial court found the leaking roof caused appellee to lose thirty pigs in the Spring of 1976, thirty pigs in the Fall of 1976, and thirty pigs in the Spring of 1977. Appellee was awarded $2,730 for the total loss. The trial court allowed appellee $1,728 for roof repair costs.

Appellant disagrees with the trial court’s finding that it approved the design and construction of the barn. Appellant argues that the roof was designed by appellee, that appellant warned him it was not a good design, and that appellant is therefore not liable for damage due to the roof’s design. Appellant relies on Reif v. Smith, 319 N.W.2d 815 (S.D.1982).

In Reif the plaintiff contractor agreed to build a home for defendants using a draftsman’s blueprints supplied by defendants. There are no facts in Reif that defendant brought the blueprints to the contractor and asked him if he thought they were good plans. The facts merely indicate that the contractor agreed to follow the blueprints provided by defendants. The blueprints proved to be woefully inadequate. We held that defendants should not receive an offset for additional work required due to the inadequate blueprints which they provided. We said:

[A] construction contractor who has followed plans or specifications furnished by the contractee, his architect, or engineer, and which have proved to be defective or insufficient, will not be responsible to the contractee for loss or damage which results . . . solely from the defective or insufficient plans or specifications, in the absence of any negligence on the contractor’s part, or any express warranty by him as to their being sufficient or free from defects.

319 N.W.2d at 818, quoting Annot., 6 A.L. R.3d 1394, 1397 (1966) (emphasis added).

The present facts are different. Ap-pellee had an idea of a farrowing barn of pole barn construction with a flat roof and he described his plan to Mr. Werley and asked for his opinion. The trial court found that Mr. Werley told appellee that aside from a possible snowload problem, his idea was feasible. These findings are supported by Mr. Werley’s testimony.

Q. (Mr. Miller) It’s true you knew what Mr. Reindl was building this building for, didn’t you?

A. Yes.

Q. And you agreed it could be built for that purpose?

A. For a combination hog, cattle and machine shed, yes.

Q. Mr. Werley, you’re aware that the normal consequences of a leaky roof on farrowing sows would be sick or dead pigs, aren’t you?

A. Yes.

Based on this testimony, appellant expressly warranted that appellee’s idea was feasible as a roof for a farrowing barn and, under the rule quoted from Reif, appellant is liable for loss or damage resulting from the roof’s design.

Appellant also disputes the trial court’s finding that the design of the roof caused the leaks. Appellant argues that the record contains mere speculation, but no evidence, on the cause of the leaks. In this vein appellant disputes the trial court’s finding that the proposed method of repair was reasonable in light of the claimed absence of evidence on the cause of the leaks. Appellant also argues that the trial court’s finding that appellee was not required to mitigate his damages until after the Spring of 1977 farrowing is clearly erroneous. Appellant claims appellee should be denied any damages for loss occurring after the Spring of 1976.

A careful review of the evidence does not impress us with a definite and firm conviction that the trial court erred in finding that appellant approved the roof design, that the design caused the leaks, that the method of repair was reasonable, and that appellee should have mitigated his damages after the 1977 spring farrowing. The evidence upon which these findings are based is either conflicting or uncontradicted in appellee’s favor. Under these circumstances we must defer to the trial judge who observed the witnesses under oath and was therefore in a better position than this court to judge their credibility. In Re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970); SDCL 15-6-52(a).

The last issue is whether the trial court erred when it awarded appellee prejudgment interest on the damages for dead pigs and for repairing the roof. SDCL 21-1—11 reads:

Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor, from paying the debt.

Appellee testified that he did not keep records of pig deaths due to the leaking roof but that he estimated his loss at twenty-five to thirty-five pigs each spring and fall farrowing season. He submitted evidence of damage based on a loss of twenty-five, thirty, or thirty-five pigs. The trial court found the loss was thirty pigs and adopted appellee’s loss figure for that number. It follows appellee is not entitled to prejudgment interest for the lost pigs because his damages were not certain until the trial court made that finding. State for the Use of Farmers State Bank v. Ed Cox and Son, 81 S.D. 165, 132 N.W.2d 282 (1965).

The trial court allowed appellee $1,728 for roof repairs, based on a price quoted to appellee on July 27, 1981. In order to receive prejudgment interest on this damage award, appellee must prove the certain or ascertainable repair cost at the time of vesting, in this case when he should have mitigated his damage. The only evidence in the record is what roof repairs would cost in 1981. The cost of repairing the roof at the time of vesting was not proved. We therefore hold that appellee is not entitled to prejudgment interest on the damage award for repairs.⁴ See, Beka v. Lithium Corporation of America, 77 S.D. 370, 92 N.W.2d 156 (1958).

We affirm the judgment except for the award of prejudgment interest. We remand for entry of judgment consistent with this opinion.

WOLLMAN, DUNN, and MORGAN, JJ., concur. HENDERSON, J., dissents.

1 . At oral argument appellant stated it builds dozens of buildings a year but had never before built one with this particular design.

2 . The parties appear to agree that snowload has never been a problem. The roof leaks occurred during spring and fall rains.

3 .At trial and in its brief appellant argued that the contract to build the barn was actually between Mr. Lang and appellee; but at oral argument it conceded the evidence supports the trial court’s finding that Mr. Lang was employed by, and working for, appellant.

4 . Appellant does not seem to claim the repair costs are unreasonable.