Mays v. Kast

531 P.2d 234, 96 Idaho 472, 1975 Ida. LEXIS 428

Opinion

PER CURIAM:

This is an appeal from a judgment in favor of defendants-respondents Kast in an action brought by Plaintiff-Appellant Roy Mays to collect moneys allegedly due under an oral contract for construction of a concrete pit for the storage of corn silage. The Kasts refused to pay and defended the action on the basis that a portion of the pit collapsed due to improper design and faulty materials. Mays, on the other hand, claimed the collapse was due to improper actions of the Kasts.

The trial court found that Mays had breached an implied warranty of fitness thus entitling Kast to a set-off of $5,000. Judgment was entered for Mays for the sum due under the contract, less the $5,000 set-off. There is no claim here that the trial court incorrectly applied the law of implied warranty of fitness, Bethlahmy v. Bechtel, 91 Idaho 55, 415 P.2d 698 (1966), but rather the assignments of error challenge the factual findings of the court as being unsupported by the evidence. We have reviewed the record and find that there is substantial although conflicting evidence to support the trial court’s finding. Planting v. Board of County Commissioners of Ada County, 95 Idaho 484, 511 P.2d 301 (1973).

Judgment affirmed. Costs to respondents.