De Young v. Crooks

ROSSMAN, J. 1. We believe that the evidence warrants the conclusion that the plaintiffs substan *22 tially performed their contract. Defendants complain concerning an alleged delay in the completion of the house. October 7, 1924, the defendants sent the plaintiffs a letter stating their intention of moving their furniture into the house due to the expiration of a lease on the apartment they were then occupying. No charge was made in the letter to the effect that the plaintiffs had delayed completion of the building. A day or two following the letter the furniture arrived and within several days thereafter the house was ready for occupancy. But there was no sewer in the street; hence the sewer running from the house could not be connected with anything in the street. This in turn rendered the plumbing fixtures useless. The defendants did not move into the house until many weeks after October 7th; their delay in making use of the house was due, we believe, to the lack of sewer connections and not to any delay on the part of the plaintiffs. We believe that the defendants should be allowed some compensation for the failure of the plaintiffs to put tin flashings on the side of the door and window frames. A witness testified that the cost of putting the flashings all around these frames and applying paint would be approximately $100. However, flashings are over the top of the frames where it is needed most. We believe that the value of the defendants’ home has been somewhat lessened by the opening of the crack between the porch floor and the side of the house; proper care upon plaintiffs’ part would have avoided this. The evidence satisfies us that the plaintiffs omitted to install the type of bookcases that the defendants paid for. On account of the foregoing three items, the defendants should be allowed $100 damages. Plaintiffs claim $329.34 for *23 extra labor and materials; we are of the opinion that this snm should be reduced to $311.01. The defendants contend that the plaintiffs cannot recover this sum due to the condition of the pleadings. The complaint alleges that the compensation to be paid by the defendants for the extra items was agreed upon. An itemized statement of the extra items is set forth in the complaint with the actual charges made therefor. The testimony does not show that before the items were installed the plaintiffs and defendants met and agreed upon the amount. Upon the other hand, the testimony indicates that the defendants signified the extra items they desired, and requested the plaintiffs to supply the necessary labor and materials. The specifications which became a part of the contract contemplated that the defendants might desire some extra items. For instance, one of the paragraphs, where extra work is mentioned, provides: “All extra work, including percentage work on the above buildings, shall be governed by all the conditions of these specifications.” The plaintiffs charged the defendants actual cost, plus fifteen per cent for supervision. Defendants contend that where an express contract is alleged a party cannot recover upon an implied one; they call to our attention Richardson v. Investment Co., 66 Or. 353 (133 Pac. 773); Schade v. Muller, 75 Or. 225 (146 Pac. 144); Taggert v. School District, 97 Or. 95 (188 Pac. 912, 191 Pac. 659), to which might be added Wolke v. Schmidt, 112 Or. 99 (228 Pac. 921). However, this is not a case in which a party undertook in an express contract to produce a certain specified result, and failing in his efforts brought forth something different which he believes is of value to the other contracting party and thereupon sues the latter, not upon a quasi eon- *24 tract, but upon the express contract. Upon the other hand, ours is a case in which the written contract which made express provision for a certain type of house recognized the fact that some minor changes might be desired, and therefore bound the contractor to make these changes upon the requisition of the owner. A mere variance between the pleadings and the proof is not sufficient to defeat a recovery in this state. Section 97, Or. L., provides: “No variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court. * * ” . In other words, a variance alone is not sufficient. The question therefore occurs: Is there such a total failure of proof that the plaintiffs should not be permitted to recover for the extra items, for it is a failure of proof and not a mere variance that defeats recovery. We have all the evidence before us. It indicates quite clearly that the extra items desired were agreed upon and the parties agreed that the defendant should pay for them actual cost; the contract makes provision for a percentage. We believe that the pleadings are sufficient to warrant a recovery under this proof. These being the circumstances, the plaintiffs may have judgment against the defendants in the sum of $122.88. In all other respects the decree appealed from is affirmed. Costs in this court to neither party. Aeeirmed. Band, C. J., and Bean and Belt, JJ., concur.