Honstain Bros. v. Linden Investment Co.

Bobinson, J. The plaintiff brings this action to recover the balance for the construction of a grain elevator at Mowbray. Por such construction Donovan agreed to pay $7,000 and the excess freight over and above the cost of laying down the material at Wales, North Dakota. Such excess freight was $240.27; one sieve was $20.50; the total was $7,260.77. Defendant paid, by check, $4,000; he paid on freight $144.60, and he was given credit for unloading stone $10. The total [212] credit is $4,154.60. The balance due is $3,106.17, which is the sum plaintiff is entitled to recover, with interest from October 18, 1908, until duly 1, 1915, at 7 per cent a year, and after that, with simple interest at 6 per cent a year. As it seems, the demand of the complaint is for a lesser sum, but in this case, where the parties have answered and made positive proof of the amount due, the demand is immaterial. Oomp. Laws, § 7680. The district court made findings and judgment against Donovan, and he appeals to this court and demands a trial de novo. It is certain that in the year 1908 the elevator was built for and at the request of Donovan. It was completed and turned over to him on October 18, 1908, and he accepted it without any objection, and since then he has continued to use it, and if used to its full capacity, it. has probably paid for itself every year. There is really no dispute concerning the facts, and the only defense is that the elevator has not a capacity of 40,000 bushels. It was built strictly in accordance with written plans and specifications and blue prints, and under the supervision of a party who represented Powers & Donovan. (46) Under the head “Size and Design” the specification reads thus: “The elevator is to be 32 x 39 feet on the ground and cribbed to a height of 45 feet to the eaves and 4 feet higher in the center above the eaves, making in all 49 feet.” At the foot of the specification there is added this memoranda of agreement: “It is understood and agreed that these plans and specifications are a duplicate of the elevator that Honstain Brothers Company are now building at Langdon for the Farm Elevator Company, except that the farm elevator is.to be 60,000 bushels capacity, and the elevator for the Linden Investment Company is to be 40,000 bushels capacity.” Now it appears from computation that the metes and bounds of the elevator, as given in the specification, do include' a number of cubic feet equal about 40,000 bushels, but because of partitions, bins, and a large hallway, the working capacity of the elevator was only about 35,000 bushels. And the contention is that under the terms of the written contract defendant was entitled to an elevator with a working capacity of 40,000 bushels, regardless of the specified dimensions or the metes and bounds. There is no showing that the Langdon elevator had a working capacity of 60,000 bushels, and the chances are that it had no such capacity, and there is no claim [213] that, in making the oral contract for the elevator, a word was ever said concerning its capacity. It seems the capacity clause was inserted merely by way of description, and not as a contract to make the elevator wider, longer, or higher than the specified number of feet. If the elevator had varied from the particular description — the width, the length, and the height, as given in the specification — then the plaintiff might have objected that it did not conform to the contract. In such a case the particular description controls that which is general. Maxim, § 7268. “Particular expressions qualify those which are general.” “Thus in conveyances of land the words merely expressive of quantity must yield to a particular description by metes and bounds.” 27 Cyc. 1138. “The statement of quantity is considered the most uncertain of a description, and when inconsistent with boundaries, courses, and distances, quantity must be rejected.” Kruse v. Scripps, 11 Ill. 98. “In conveyances, descriptive words, when definite and certain, are to be looked to rather than words expressing quantity.” Maguire v. Bissell, 119 Ind. 315, 21 N. E. 326. Clearly it was not the intention of the parties to contract that-the specified length, width, and height of the building should be extended so as to make it contain a specified number of bushels. If such had been the intention, then it should have been clearly expressel in words. Hence, on all the evidence, we must conclude that the building was constructed in accordance with the contract and the plans and specifications. Concerning the mechanic’s lien, there is some question as to its validity, but it is of slight importance, as the defendant is perfectly responsible, and he has given bonds to pay the judgment. However, it appears that Donovan owned the lots on which he caused the building to be constructed, and, under the statute, the plaintiff had a right to a lien on the lots and the building, even without the filing of a lien. The purpose of filing a lien is to give notice to subsequent purchasers and encumbrancers. The contract was to erect a building on lots 1 and 2, sec. 25, township 161 of range 61, in Cavalier county, North Dakota. The building was duly erected, and there is no question concerning the price, the excess freight, or the payments. For some eleven years Donovan has had the use of the good building and the use of the [214] balance due for a low rate of simple interest. His love of litigation must have been quite fully satisfied. Now the seal of the court should be given to his love of honesty. The judgment of the court must be that the plaintiff do have and recover from the defendant E. I. Donovan the sum of $3,106.17, with simple interest on the same, at 7 per cent a year from October 18, 1908, to July 1, 1915, and after that, with simple interest at 6 per cent a year, with the costs of the action and the costs of the appeal; and that the plaintiff may issue a general execution for the collection of the same; also, that, for the amount so adjudged to be due, the plaintiff shall have a lien on said lots 1 and 2, and may cause the same to be sold under a special execution, as provided by law. let judgment be entered accordingly. Modified and affirmed, with costs. Christianson, Ch. J., concurs. Grace, J. I concur in the result. Birdzell, J. In my opinion the judgment appealed from should be affirmed without modification.