Opinion
No. 27425.
January 21, 1929. Suggestion of Error Overruled March 4, 1929.
1. PLEADING. Remedy, in case declaration for damages to real or personal property is not sufficiently specific, is by motion for bill of particulars or demurrer; question as to declaration not being sufficiently specific cannot be raised after verdict when containing sufficient allegations to show damage.
Where a declaration is filed, claiming damages to real and personal property in a suit, if the declaration is not sufficiently specific, a motion should be made for a bill of particulars, or a demurrer to the declaration. The question cannot be raised after a verdict, when the declaration contains sufficient allegations to show damage.
2. DAMAGES. Contractors constructing roof which leaked are liable, not only for expense of proper roof, but also for damages to building and contents.
Where contractors contract to repair a house by placing a roof thereon in a workmanlike manner, and fail to comply with their contract, but put a roof on which leaks, and damages the house and furniture and other articles therein, the contractors are not only liable for the expense of putting on a proper roof, but are also liable for damages resulting to the building and to the contents thereof by reason of the defective roof.
3. TRIAL. Mere defect in particular instruction does not require reversal in case instructions as a whole constitute fair statement of law.
The supreme court, in passing upon the instructions on appeal, look to the instructions as a whole, one as supplementing or modifying another; and, if so taken they constitute a fair statement of law applicable to the case, the court will not reverse for a mere defect in a particular instruction.
4. CONTRACTS. Written acceptance of work in ignorance of defects does not prevent recovery of damages for failure to do work in workmanlike manner.
When a contractor, having experience in contract work, puts a roof upon a building under an agreement that it is to be done in a workmanlike manner, and it is negligently put on, the mere signing of a written acceptance of the work, in ignorance of defects in the roof, will not prevent the owner from recovering damages for the failure to comply with the contract on the part of the contractor.
5. TRIAL. Jury, in determining damage to property without market or fixed value, may consider facts as to injury and estimated damages based on experience.
In proving damage to property which has no market or fixed value, the jury may consider the facts as to the injury, the nature and appearance of the property, the estimated amount of damages based upon the experience and judgment of the witness — and, taking all of these things, may bring to bear upon them its own experience, and fix the value of the property and the damage thereto. In such case the law does not require strict, definite, and precise proof.
APPEAL from circuit court of Hinds county, First district, HON. W.H. POTTER, Judge.
Howie, Howie Latham, for appellants.
The declaration in this case is filed in the name of Miss Lucy Catlett, Miss Gertrude Catlett and Mrs. Margaret Catlett Rees. Judgment was rendered as follows: "It is, therefore, ordered and adjudged that the plaintiffs, Miss Lucy Catlett, Miss Gertrude Catlett and Mrs. Margaret Catlett Rees, to have and recover of and from the defendants," etc., judgment in the sum of seven hundred fifty dollars. The only proof with reference to the ownership of the property which was claimed to have been damaged on account of the default of the appellants is as follows: "Q. The house belongs to you, does it? A. To my sister and myself. By the court: Q. That is you and Miss Lucy are owners of the house? A. Yes." It appears therefore, that Mrs. Rees had no interest in the property damaged. We submit, therefore, that judgment in favor of Mrs. Rees is not sustained by the evidence; and the judgment entered in favor of the plaintiffs, one of whom was shown positively to have had no interest in the property, must be set aside.
Written Acceptance Binding on the Appellees: About two weeks after the contract was completed, the appellees signed a written acceptance in which they certified as follows: "This is to certify that Messrs. Westerfield and Meeks have completed covering roofing of dwelling belonging to the undersigned in accordance with the contract dated ____ day of March, 1927, and the same is hereby accepted by said owners."
We contend that this written acceptance signed by the plaintiffs is binding upon them and is final and the question of the completion of the work according to the contract was not the question for the jury to pass upon, but should have been taken from the jury because of this written acceptance.
The declaration in this case sets out a claim for damages in the sum of four hundred twenty-nine dollars for putting on another roof and claims six hundred dollars in the following words:
"That on account of the faulty construction of said roof the rain has leaked through and damaged and disfigured and destroyed the papering in all of the rooms, destroyed furniture and rugs, discolored the woodwork, and rotted the timber in said house to the damage of the plaintiffs in the sum of six hundred dollars." This statement of the damage sought is very general and indefinite. There is no particular amount alleged for damage to paper; no particular amount for furniture; no particular amount for rugs; no particular amount for discolored woodwork or rotten timber, or anything else.
We contend that the plaintiffs below were not entitled to make proof of any item except that it be specifically alleged in the declaration. This point has been clearly and directly decided by this court, in McGee v. Jones, 116 So. 888. Powell, Harper Jiggitts, for appellees.
Appellants contend that Mrs. Margaret Catlett Rees, one of the plaintiffs was not shown to be interested in the property damage. In reply to this contention, we say, First: That Mrs. Margaret Catlett Rees, one of the plaintiffs in the court below, was a party to the contract for covering the house and was a necessary party to this suit. Second: we say that being a party to the contract she was entitled to recover at least nominal damages, even though she suffered no actual damages. See Forrester v. Faulk Christian Lumber Co., 105 Miss. 612; Thompson v. N.O. G.N.R. Co., 50 Miss. 315. Third: We say that on this point where a recovery is had in the name of the proper parties, it is immaterial error that one who had no right of action was joined as plaintiff, the defendant not having objected to the misjoinder as required by sec. 1511, Code of 1880, sec. 722, Code of 1906. See W.L. Jackson, Exr., v. Beatrice Dunbar et al., 68 Miss. 288; Lumber Co. v. Rather, 111 Miss. 56; I.C.R.R. Co. v. Cathey, 70 Miss. 332.
Appellants contend that there is an acknowledgment which released them from all liability. But, it is shown uncontradictedly by the evidence that this acknowledgment was obtained immediately on the completion of the job of covering the house before any leaks had developed and when the appellants were in utter ignorance that the job had not been properly done. It is needless for us to argue that an acknowledgment obtained under such conditions and by such a fraudulent practice was of no binding force.
Appellants contend that the plaintiffs did not set out an itemized account of their damage. We say that in an action of this kind no itemized account was required. The declaration states the different properties which were damaged and the evidence introduced by plaintiffs related only to the subjects mentioned in the declaration. If the statement in the pleading was not sufficiently specific the appellants should have made the point in the lower court where an amendment could have been made and having failed to do so they are too late in this court to make the objection. Sec. 808, Code of 1906.
McGee v. Jones, 149 Miss. 835, 116 So. 88, cited by appellant has no application to the case at bar for the reason that in that case there was an itemized account and testimony was taken in regard to matters which did not appear upon the itemized account. In this case no testimony was taken upon any item not mentioned in the declaration.
In March, 1927, a contract was entered into between the appellants and the appellees for the recovering of a dwelling house occupied by the appellees. The contract called for the removal of all wood shingles from said residence, to sheet the roof solid, and cover the entire roof with slate surface three-ply roll roofing, applied according to manufacturer's directions, all work to be performed in a first class workmanlike manner; the dwelling house being situated in Madison county about seven miles from Canton, Miss.
The appellees agreed to pay for said performance of the contract three hundred seventy-five dollars, upon completion of the work, when a check should be received from the insurance company; the dwelling being insured against storms in favor of the appellees.
The appellants undertook to perform their contract, and, after they had completed it according to their ideas, they presented an instrument in writing, accepting the work done.
The first rain that fell after the completion of the work developed leaks in the roof, and the appellants were notified thereof, and undertook to repair such roof to prevent the leaks: but subsequently the roof leaked badly, and the appellants did not undertake to correct such leaks. After waiting several months, the appellees let the contract to another concern, who put on a new roof at a charge of four hundred twenty-nine dollars; and this suit is brought to recover the money so paid for such roof, and for damages to the building and furniture, the wall paper, and other things, injured by the leakage of the original roof.
There was a trial, and a verdict for seven hundred fifty dollars, from which judgment in favor of the appellees this appeal was taken.
It was developed in the proof that the building was owned by Miss Lucy Catlett and Miss Gertrude Catlett, and that the other plaintiff, Mrs. Margaret Catlett Rees, did not own the building, but that she signed the contract, and lived with the young ladies in the house. There was no plea of misjoinder of plaintiffs filed, as is required by the statute; and there is no merit in the contention that the judgment must be reversed because of the lack of ownership in this building by Mrs. Rees. She was a party to the contract with the appellants, and lived with the owners of the building, occupied it, and was subject to the annoyances resulting from the leaking roof, defectively put on by the appellants.
Of course, there was a conflict as to whether or not the work was defective, but the jury's verdict on this conflict in the evidence resolved the facts in favor of the appellees.
It is urged that the declaration is insufficient, in that it was a suit for damages to personal and real property because of the alleged breach of the contract, and that the declaration did not sufficiently specify the damage to each item.
We think the declaration is sufficient, and, if a bill of particulars were needed to furnish the information, the question should have been raised by motion for a bill of particulars; and, if that was not sufficient, to have it made more certain.
It is also contended that there should have been no recovery beyond the cost of the roof, or the repairing of the roof, and that the verdict should not have exceeded four hundred twenty-nine dollars. We think it clear that the appellants were not only liable for the expense of putting on the proper roof, but for damages resulting to the building, and the contents thereof, because of the defective roof.
We also think that the instructions, taken together, announce the law fully and correctly, applying the rule that they are to be taken as a whole, one as supplementing or modifying another; and, as so taken, they constitute a sufficient announcement of the law applicable to the case.
We do not think that the appellees were bound by the writing to accept the work, for the reason that the proof abundantly shows that the workmanship was, in fact, defective, and that the appellant had better means of knowing this fact than the appellees; the latter not being experienced in such undertakings, and the appellants being experienced contractors, constantly dealing with this kind of work.
It is also contended that the proof is insufficient to establish the extent of the damage to the building and its contents. The proof on the part of the plaintiffs disclosed the facts as to the leakage, and the facts as to the nature and extent of the injury, unless it could be said that their evidence did not specify the exact amount, or approximately the exact amount, of the damage, or the value of the property before the injury thereto, and the value thereafter. In fixing value of, or damage to, property, where there is not a fixed market value, it is competent for the evidence to show the nature and character of the injury, the condition of the property, and to give an estimate, based upon experience or judgment; and the jury will take all the facts and surroundings, the character and condition of the property, and bring to bear thereon their own experience, and themselves fix the value of the property, or the damage thereto.
In the case of Salter et al. v. Jennings Furniture Co., 144 Miss. 194, 109 So. 704, it was held that the jury, in fixing the value of secondhand furniture, for the purpose of rendering judgment on the forthcoming bond therefor, given in an action under the Code for the purchase money therefor, are not bound down to sums fixed by witnesses as to value, nor that of the sheriff, as fixed in his returns, but may consider the evidence as to the property's condition and appearance, and their own knowledge gained by experience and observation, and deduce from the whole what, in their judgment, was its value at the time of its seizure and the execution of the bond.
In that case the verdict of the jury did not correspond to the value as fixed by the sheriff's returns, nor with the value as fixed by the witnesses; but the court held that, having all these things as data before them, they could apply their own judgment and experience, and find from the whole the value of the property.
In Dyer v. Hobert (Miss.), 117 So. 244, the court had before it a case involving the amount of damage to an automobile, caused by a collision with a truck of the appellant, Dyer. The court held in that case that, in questions involving value, witnesses may testify as to opinions based on experience, although not experts, and the testimony of a person as to the amount that the automobile was damaged in the collision, together with the facts as to the nature of the injury, were sufficient to support a verdict.
In questions of value where there is no market value, but depending upon the character and use of property, and its condition, etc., the law has, of necessity, relaxed the rule of strict, definite, specific proof, and has authorized the jury to take all the available facts pertinent to the question, and apply their common sense and experience to such facts, and therefrom deduce the value of the property or the extent of the damages or injury. This, in fact, appears to be the only practical test to be applied in many cases, because, from the very nature of the situation and condition of the subject-matter, no other safe or satisfactory method is available to determine such questions.
We therefore think that the judgment should be affirmed.
Affirmed.