Opinion
No. 35270.
Filed July 19, 1963.
1. Vendor and Purchaser: Damages. In an action for breach of a contract of purchase where the defects in a house may be remedied without materially injuring or reconstructing any substantial portion of the house, the measure of damages is the cost of repairs in making it conform with the terms of the contract. 2. ___: ___. Where such defects cannot be remedied without reconstruction of, or a material injury to, a substantial portion of the house, the measure of damages is the difference between its market value at the time of sale and its market value if it had been as warranted or represented. 3. Damages: Appeal and Error. Where a certain theory as to the measure of damages is relied upon by the parties in the trial court, it will be adhered to on appeal whether or not it is correct.
Appeal from the district court for Lancaster County: JOHN L. POLK, Judge. Affirmed.
Ginsburg, Rosenberg Ginsburg and Norman Krivosha, for appellant.
Muffly Snyder, for appellees.
Heard before WHITE, C.J., CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
This is an action at law to recover damages brought by Peter Jacobs, Jr., and Vinona Jacobs, husband and wife, plaintiffs, against Erwin C. Korst, also known as E. C. Korst, defendant, for breach of warranty arising out of an agreement entered into on May 22, 1959, between the plaintiffs and the defendant. The plaintiffs claimed damages in an amount equal to the cost of placing the house purchased by them in the same condition as was represented and warranted by the defendant. The case was tried to a jury, resulting in a verdict in favor of the plaintiffs in the amount of $1,725. Judgment was rendered on the verdict and the defendant appeals.
The evidence shows that plaintiffs entered into a written agreement with the defendant to purchase the house in question, and they have carried out their part of the agreement. They allege that defendant represented and warranted that he would "Stand behind All Workman Ship Materials for 1 year from this Date." Plaintiffs allege that the quoted language was written into the contract of sale at the time of the closing of the sale of the house.
The house is of brick veneer construction, and at the time of entering into the contract plaintiffs testified that it appeared to be as represented and warranted. About 3 months after moving into the, house plaintiffs discovered cracks in the bricks. The condition increased until 50 percent of the bricks had cracked. The bricks were alleged to be of inferior quality and their replacement necessary to make the house as represented and warranted. In addition to the replacement of the bricks, there was painting, caulking, and carpentry work to be done, including the replacement of two doors.
The defendant admits selling the house to the plaintiffs but alleges that plaintiffs purchased the house after personal examination and not in reliance on anything defendant may have said or done. Defendant admits that the bricks used contained hairline cracks before they were used in the construction of the house, and contends that the cracks were apparent and should have been observed by plaintiffs. Defendant further contends that the cracks in the bricks in no way affect the livability, use, or value of the house and result in no damage to the premises.
The defendant was an experienced contractor and builder. According to his testimony he purchased the bricks containing hairline cracks for $55 per thousand, when bricks ordinarily used would cost $95 per thousand. He testified that he was required to use these bricks to meet competition in the immediate area. Defendant did not inform plaintiffs of the use of the cracked bricks, but asserts that Jacobs examined the construction carefully and knew or should have known of their use.
The evidence is sufficient to sustain the jury's finding that the house was not as represented or warranted. The evidence as to the cost of replacing the bricks and doing the other work testified to as being necessary is sufficient to sustain the verdict for $1,725. No contention is made that it does not.
The issue raised by this appeal is whether or not the jury was properly instructed on the measure of damages. The trial court instructed as follows on this point in instruction No. 6: "You are instructed that should you find for the plaintiffs under the evidence and the law as given you in these instructions, you will permit them to recover the fair and reasonable cost of placing the house in substantially the same condition as it was represented and warranted to be in, if any, at the time the agreement was executed."
The trial court, contrary to an instruction requested by the defendant, refused to submit to the jury the question of whether or not the defects, if any, could be remedied with or without substantial reconstruction or material injury to the building. Defendant contends this was error.
The plaintiffs pleaded a breach of warranty and representations made in a contract for the sale of a residence property. They sought damages for the amount of money it would take to put the house in the condition in which it was represented and warranted. The measure of damages pleaded by plaintiffs was not objected to by motion. The defendant denied generally and alleged further that plaintiffs purchased the house after personal inspections thereof and that they knew or should have known of the alleged defects. Defendant denied that plaintiffs were in anywise damaged.
The state of the pleadings and the evidence adduced show that the case was tried on the measure of damages pleaded by the plaintiffs and submitted to the jury by the trial court. The defendant testified at one stage of the trial that the removal of the bricks would cause practically a full reconstruction of the house. No evidence was produced by either party as to the value of the house when it was sold and what its value would have been if it had been as represented.
After the case was tried on the theory of the plaintiffs and the measure of damages pleaded by them, the defendant offered an instruction requesting that the court submit the issue as to whether or not the house could be remedied with or without substantial reconstruction or material injury to the building.
We think the issue is controlled by a line of cases holding that when a case is tried on a certain theory as to the measure of damages, it is proper for the trial court to instruct on that theory, although such measure of damages may not be the correct one. In Welch v. Reeves, 142 Neb. 171, 5 N.W.2d 275, a case similar in principle, this court said: "Did plaintiffs' evidence sustain the damages recovered? The only evidence indicating the value of the property is the purchase price. There is no evidence fixing the actual value of the property at the time of the conveyance. That it had a material value is certain. Neither is there evidence as to its value had it been as represented. However, it must be noted that plaintiffs pleaded their case on the theory that their damages were the amount of the cost of placing the property in the condition in which it was represented to be. Defendants did not challenge the sufficiency of the petition by demurrer, but rather joined issue with the plaintiffs on that theory of arriving at the damages. * * * It has long been the rule of this court that, when a certain theory as to the measure of damages is relied upon by the parties in the trial court as the proper one, it will be adhered to on appeal whether it is correct or not." See, also, Haarberg v. Schneider, 174 Neb. 334, 117 N.W.2d 796; Baum v. County of Scotts Bluff, 169 Neb. 816, 101 N.W.2d 455.
For the reasons stated, the judgment of the district court is affirmed.
AFFIRMED.