Dickinson Gillespie, Inc. v. Kirkwood , 204 Minn. 401 ( 1939 )

¹ Reported in 288 N.W. 725. Plaintiff sought to recover from the defendants a claimed balance of $331.86 on the agreed contract price for constructing a house in St. Louis Park. The defendants counterclaimed for inferior materials and defective workmanship in the sum of $750 and as a second counterclaim sought to recover special damages for two months' delay in the completion of the house for occupancy. They set up that they were required to find another apartment and to pay rent therefor for a period of two months and were put to additional expense in moving and storing their furniture and household goods and were consequently damaged in the sum of $100. The third counterclaim was for $44.36 for omitted items.

At the commencement of the trial counsel for the plaintiff announced to the court that he had agreed with counsel for defendants that "in view of the admissions in the answer and the set-off" the plaintiff's case "may be conceded as aprima facie case without proof" and that plaintiff might rest its case "and try the counterclaims out as if the defendants were plaintiffs." Counsel for the defendants then stated: "The only thing we deny here in your complaint is that the time within which the building was to be completed was extended from December 10, 1936, as called for in the contract, for six months to June, 1937. We don't admit that. Outside of that we will admit your case." To this statement counsel for the plaintiff responded: "With this understanding, the plaintiff rests." There was then a short conversation with regard to some minor items, and counsel for the plaintiff stated: "We will meet your claims as to defects and proper performance." Thereupon the case proceeded as if the defendants were plaintiffs, and they were allowed to close their case to the jury. The trial resulted in a verdict for the defendants in the sum of $264.55, and the case comes here upon appeal from an order denying the plaintiff's motion for a new trial.

The questions presented by the appellant are: First, whether the facts alleged in the second counterclaim for rent and moving expenses during the alleged delay in construction constituted a cause of action, or whether the proof sustained a recovery therefor; second, whether counsel for the plaintiff was entitled to make the final closing address to the jury; third, whether the verdict was justified by the evidence.

1. The second counterclaim based upon the delay in completing the dwelling house at the time specified in the contract attempted to plead special damages for the rent of an apartment and for storage and moving expense during the two-months period of the delay. There was nothing in the pleading or in the proof offered tending to show that these special damages were within the contemplation of the parties at the time they made the contract, and no proof was offered of the fair use or rental value of the house during those two months had it been completed. The latter would be the general damages which, as the direct and inevitable result of failure to complete the house within the time specified, would have been within the contemplation of the parties at the time of making the contract. Liljengren F. L. Co. v. Mead, 42 Minn. 420,423, 44 N.W. 306. The record before us is barren of any evidence that the matters attempted to be pleaded as special damages were within the contemplation of the parties at the time of making the contract. Without such proof there can be no recovery under the second counterclaim. Liljengren F. L. Co. v. Mead, 42 Minn. 420, 422, 423, 44 N.W. 306; Frohreich v. Gammon, 28 Minn. 476, 11 N.W. 88; Glaubitz v. Meyer, 149 Minn. 161,163, 182 N.W. 1002; Smith v. Altier, 184 Minn. 299,238 N.W. 479. This does not mean, of course, that by a subsequent modification of the contract at a time when such matters were within the contemplation of the parties special damages might not arise, but here the conversation upon which the defendants rely for proof of that fact occurred some months after the contract was made, and no modification of the contract was effected. No consideration of any kind passed to the plaintiff at the time of this conversation. Moreover, after the making of the contract the plaintiff was delayed for some weeks before it could start the construction of the house by the fact that the defendants did not get their title in shape so that they could safely go ahead with the construction.

2. We think plaintiff's counsel foreclosed himself from the right to have the closing argument to the jury by the colloquy which we have quoted between himself and the counsel for the defendants.

3. Examination of the record discloses that plaintiff's contention that the verdict is not justified by the evidence is without merit except as to the second counterclaim.

A new trial is granted unless the defendants consent to a reduction of the verdict by the sum of $100, the amount sought by their second counterclaim.