Swain v. Harvest States Cooperatives

469 N.W.2d 571, 1991 N.D. LEXIS 88, 1991 WL 70928
CourtNorth Dakota Supreme Court
DecidedMay 7, 1991
DocketCiv. 900270
StatusPublished
Cited by15 cases

This text of 469 N.W.2d 571 (Swain v. Harvest States Cooperatives) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swain v. Harvest States Cooperatives, 469 N.W.2d 571, 1991 N.D. LEXIS 88, 1991 WL 70928 (N.D. 1991).

Opinions

GIERKE, Justice.

Harvest States Cooperatives, formerly doing business as Great Plains Supply Co. [Great Plains], appeals from a district court judgment awarding Garland and Kathleen Swain $77,986.99. We affirm in part, reverse in part, and remand for entry of amended judgment.

In 1978 Great Plains and Gregory and Kathleen Sinclair entered into a building contract in which Great Plains agreed to build the Sinclairs a modular house near Devils Lake for $39,300. Great Plains’ representatives were aware that the land had a high ground water table and suggested a wood basement foundation. Although the blueprints for the house required drain tile in the basement, a Great Plains representative indicated that drain tile was not necessary because of the wood basement foundation. After the house was completed in the spring of 1979, the Sinclairs lived there until July 1982 when Gregory was transferred by his employer. The Sinclairs subsequently sold the house to the Swains for $65,000 in the spring of 1984.

In the fall of 1984, the Swains noticed that a wall in the basement was warped. Great Plains told them that it was a warped stud. In the spring of 1985, the Swains observed cracks in the basement floor. Great Plains informed them that the cracks were nothing major. In 1986, the Swains noticed larger cracks in the basement floor. Great Plains sent a representative to look at the home, and Twin City Testing was hired to take core samples from the basement floor. Those tests revealed that the foundation did not meet several minimum guidelines for wood basement foundations. On November 4, 1986, Great Plains wrote the Swains a letter in which it disclaimed any responsibility for the problems with their house.

The Swains sued Great Plains, alleging breach of contract, negligence, and breach of warranty. At a bench trial, the Swains presented evidence that the basement floor was heaving because of hydrostatic pressure and failure of the drainage system which in turn caused structural damage to the remainder of the house. According to the Swains, the doors did not work properly, the walls and paneling were warped, the kitchen ceiling was cracking, the rafters in the attic were splitting, and the house was “falling apart.”

The trial court found Great Plains liable under breach of contract, negligence, and breach of warranty. The court awarded the Swains $46,816, plus 6% prejudgment interest ($10,042.99) from November 4, 1986, for the cost to repair the house; $9,128 for housing, food, moving and storing expenses incurred while the repairs were completed; and $12,000 for Garland’s lost salary.

On appeal, Great Plains does not contest the trial court’s determinations on liability, but contends that the trial court used the wrong measure in awarding damages to the Swains. Relying on Dobler v. Malloy, 214 N.W.2d 510 (N.D.1973), and Roll v. Keller, 356 N.W.2d 154 (N.D.1984), Great Plains argues that because of the overall cost of the repairs, reconstruction of a substantial portion of the house was necessary and therefore diminution in val[573]*573ue was the proper measure of damages. Great Plains argues that the damages for diminution in value were between $25,500 and $37,500.

In Dobler, supra, 214 N.W.2d at 518, we outlined the measure of damages under Section 32-03-09, N.D.C.C.,1 for breach of a construction contract:

“There are, of course, two possible measures of damages. If the contract is substantially performed, and the breach of contract can be remedied without taking down and reconstructing a substantial portion of the building, the amount of damages is the cost of making the work conform to the contract. Or, where the defects cannot be remedied without reconstruction of a substantial portion of the work, the measure of damage is the difference in value between what it would have been if built according to contract and what was actually built.”

In Roll, supra, 356 N.W.2d at 157-158, we outlined the measure of damages under Section 32-03-09.1, N.D.C.C.,2 for property injury not arising under contract:

“The thrust of § 32-03-09.1, N.D.C.C., is that either the cost to repair or the diminution in value, whichever is lower, is the measure which should be applied. The diminution in value method is applicable only when restoration is impossible or impracticable. In the instant case, restoration was not impossible since the sewer line was restored within a reasonable time. Restoration, in order to qualify as impracticable, must cost more than the amount by which the property value has been reduced.”

[574]*574In this case the trial court determined that the proper measure of damages was the cost of making the work conform to the contract:

“The Court concludes that the contract was substantially performed and the measure of damages is the cost of making the work conform to the original contract. The cost of repair rather than diminution of value is the correct measure of damages where the house must be made liveable. The Court concludes that a $46,816 figure to repair the physical structure of the house is a reasonable amount to compensate the Swains first in the breach of contract action; second, in the negligence action, and finally, in the breach of implied warranty action.”

The Swains’ expert, James Glick, a structural engineer, testified that the structural problems in the house would continue to get worse until they were fixed or the structure failed. There was evidence that the value of the house was decreasing and that the house would become worthless if not repaired. There was also evidence that the assessed value of the house had decreased from $68,000 in 1984 to $27,500 prior to trial. Although the cost for repairing the house is not an unsubstantial amount, the evidence supports an inference that the cost to repair the house was lower than the diminution in value. Thus, restoration of the house was neither impracticable nor impossible. Roll v. Keller, supra; Shimek v. Vogel, 105 N.W.2d 677 (N.D. 1960). Under these circumstances, we agree with the trial court that the cost to repair was the correct method for measuring damages.

The Swains presented evidence that the cost to repair the house was $56,296. The court found that the cost to repair was $46,816. We are not left with a definite and firm conviction that the trial court made a mistake in awarding $46,816 as the cost to repair the house. The trial court’s finding is therefore not clearly erroneous under Rule 52(a), N.D.R.Civ.P.

Relying on Section 32-03-04, N.D. C.C.,3 Great Plains contends that the trial court erred in awarding $10,042.99 in prejudgment interest on the cost to repair the house because the actual costs of repair were subject to reasonable controversy. The Swains respond that merely because Great Plains contested liability for damages does not mean that those damages were uncertain or not capable of calculation under Section 32-03-04, N.D.C.C. Alternatively, the Swains argue that under Section 32-03-05, N.D.C.C., the court did not err in awarding prejudgment interest after Great Plains disclaimed responsibility for the structural problems in the Swains’ house in a November 4, 1986 letter.

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Swain v. Harvest States Cooperatives
469 N.W.2d 571 (North Dakota Supreme Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
469 N.W.2d 571, 1991 N.D. LEXIS 88, 1991 WL 70928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swain-v-harvest-states-cooperatives-nd-1991.