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Ashe v. Tudor N. Hall Associates Inc.

Filed: October 16, 1979.

NORMAN A. ASHE AND RUTH E. ASHE
v.
TUDOR N. HALL ASSOCIATES, INC.



Appeal by defendant from McDarris, Judge. Judgment entered 15 September 1978 in District Court, Jackson County. Heard in the Court of Appeals 26 September 1979.

Arnold, Judge. Judges Webb and Wells concur.

Arnold

Issues submitted to the jury in this case were as follows:

(1) Did the plaintiff and defendant enter into a building contract as alleged in complaint?

Answer: Yes

(2) Did the defendant breach this contract as alleged in complaint?

Answer: Yes

(3) What amount of damages, if any, are the plaintiffs entitled to recover of defendant?

Answer: $4,750

The crucial question we face on this appeal is whether the evidence, considered in the light most favorable to the plaintiffs, shows a breach of contract.

The contract includes the following specifications: "Foundation: 1. Concrete pier on concrete footings 2. Below frost line 3. Steel reinforcing rod in piers and footings." Defendant's employee who supervised the construction testified that "[t]he foundation was dug to below the frost line. The piers were made of cement blocks and were poured solid with steel rods reinforced." This testimony is uncontradicted, and it is defendant's position that this showing of compliance with the contract specifications settles the matter. Plaintiffs contend, however, that Paragraph Seven of the contract indicates that something more was required. That paragraph reads, in pertinent part: "This agreement covers construction of the above described residence on a clear and level lot. Should the slope or elevation of the lot be such as to require extra foundation block or fill dirt under the slab, pool deck, patio, drives or walks, over and above that which would be required for the normal two course foundation specified in the plans, the expense of same will be borne by the Owners."

It is undisputed that plaintiffs' house was constructed on a steep slope, and that both parties were aware of this before the contract was executed. We find that the ordinary meaning of the quoted portion of Paragraph Seven simply requires plaintiffs to pay for any extra fill dirt or foundation block that might be required during construction. ...


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