{ "id": 1555151, "name": "A. B. COCHRELL, and June Cockrell, Plaintiffs-Appellees, v. S. L. HIATT, d/b/a Hiatt Construction Co., Defendant-Appellant", "name_abbreviation": "Cochrell v. Hiatt", "decision_date": "1981-12-22", "docket_number": "No. 5200", "first_page": "256", "last_page": "259", "citations": [ { "type": "official", "cite": "97 N.M. 256" }, { "type": "parallel", "cite": "638 P.2d 1101" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "92 N.M. 381", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557166 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0381-01" ] }, { "cite": "95 N.M. 594", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575606 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0594-01" ] }, { "cite": "160 N.E. 262", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1928, "pin_cites": [ { "page": "263" } ], "opinion_index": 0 }, { "cite": "262 Mass. 458", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 3823003 ], "year": 1928, "opinion_index": 0, "case_paths": [ "/mass/262/0458-01" ] }, { "cite": "52 N.M. 65", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1579488 ], "weight": 5, "year": 1948, "pin_cites": [ { "parenthetical": "defendant's inability to drill to depth specified by contract because of his own [negligent] operations supports breach of contract suit for damages in amount of cost for drilling new well" }, { "parenthetical": "defendant's inability to drill to depth specified by contract because of his own [negligent] operations supports breach of contract suit for damages in amount of cost for drilling new well" }, { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nm/52/0065-01" ] }, { "cite": "58 N.M. 422", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587522 ], "weight": 2, "year": 1954, "pin_cites": [ { "parenthetical": "plaintiff entitled to recover costs of repairing latent defects because of defendant's poor workmanship and materials, in breach of contract suit against defendant contractor" }, { "parenthetical": "plaintiff entitled to recover costs of repairing latent defects because of defendant's poor workmanship and materials, in breach of contract suit against defendant contractor" } ], "opinion_index": 0, "case_paths": [ "/nm/58/0422-01" ] }, { "cite": "86 N.M. 117", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2821131 ], "weight": 2, "year": 1974, "pin_cites": [ { "parenthetical": "costs to buyer for repair of work negligently done by seller, under contract for services, is recoverable as measure of damages in buyer's claim for breach of contract" }, { "parenthetical": "costs to buyer for repair of work negligently done by seller, under contract for services, is recoverable as measure of damages in buyer's claim for breach of contract" } ], "opinion_index": 0, "case_paths": [ "/nm/86/0117-01" ] } ], "analysis": { "cardinality": 555, "char_count": 8385, "ocr_confidence": 0.776, "pagerank": { "raw": 9.607325520138277e-08, "percentile": 0.5266281933811585 }, "sha256": "a19907d66c5561eb59bf25e2893cd17df66db46a03388c0e9089eb11a717f43a", "simhash": "1:8169a4287bd2d516", "word_count": 1342 }, "last_updated": "2023-07-14T20:10:51.585150+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and NEAL, JJ., concur." ], "parties": [ "A. B. COCHRELL, and June Cockrell, Plaintiffs-Appellees, v. S. L. HIATT, d/b/a Hiatt Construction Co., Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWALTERS, Chief Judge.\nDefendant Hiatt appeals from a judgment in favor of plaintiffs Cochrell in the amount of $3,970.88. The trial court found that Hiatt had breached a valid roofing contract, and it rendered judgment for plaintiffs in an amount equal to the cost to them for installation of a new insulated roof.\nHiatt challenges nine of the court\u2019s findings:\n3. On or about June 16, 1976, the Plaintiffs entered into a written contract with Defendant doing business as a sole proprietorship, and whereby the Defendant for the sum of $1,083.00, agreed to renovate Plaintiff\u2019s roof, install insulation in the roof; reroof and waterproof the roof of Plaintiffs\u2019 residence. * * *\n9.The roof was inspected and the inspection showed the roofing around the chimney had been improperly installed, permitting a one-inch gap to develop between the chimney and the roof surface; roofing material was pulling away from the parapets; numerous blisters had developed in the surface and had cracked, all of which allowed water to leak into the sub-surface of the roof.\n13. The damages sustained to the roof were the result of deficient workmanship and materials provided by Defendant.\n18. Defendant represented to Plaintiffs that with maintenance at a nominal charge the roof was guaranteed for 25 years from normal wear and tear and weathering.\n19. Plaintiffs were never informed that the guarantee excluded hail damage.\n22. On or about January 9, 1977, the roof began leaking into the living room.\n23. Defendant made temporary repairs during January, informing Plaintiffs that pursuant to the contract between the parties, he would make permanent repairs on Plaintiffs roof when the weather and temperature would permit.\n27. Following Defendant\u2019s inspection of Plaintiffs\u2019 roof, the roof was inspected by * * *, a qualified and experienced roofing contractor, who found no evidence of hail damage thereto.\n28. As a result of the failure of the work of Defendant and the inadequacy of the roof installed by Defendant on the home of the Plaintiffs, the Plaintiffs were required to have their roof completely reroofed by a conventional method, in order to prevent water leakage into their home, and replace ruined roofing insulation, and the reasonable cost of such repairs was $3,970.88.\nFinding of Fact 22 is challenged because it contains a typographical error: \u201c1977\u201d instead of \u201c1978.\u201d The error can be corrected with leave of the appellate court. N.M.R.Civ.P. 60, N.M.S.A.1978. The evidence leaves no doubt that the error was purely typographical; we apply our common sense and read Finding 22 as if written \u201c1978.\u201d\nDefendants\u2019 principal claim on appeal is that there was \u201cno allegation or pleading based upon a theory of breach of contract to recover compensatory damages\u201d; that theories of \u201cbreach of guarantee and breach of contract * * * were not before the court and were not tried\u201d; and, therefore, \u201cthe ultimate findings and judgment based thereon cannot stand.\u201d\nThis argument is a perfect example of an appellant\u2019s \u201csemantic aphasia\u201d criticized by Judge Wood in State v. Keener, No. 5157 (Ct.App.), filed November 24, 1981.\nThe existence and terms of the contract between the parties were expressly pleaded in three of plaintiffs\u2019 ten paragraphs of the complaint; the incidents of roof leakage and descriptions of defendant\u2019s conduct detailing failure to fulfill the terms of the contract were alleged in four other paragraphs; a copy of the contract was attached to the complaint as an exhibit. Paragraph 10 claimed \u201ca wilful breach of such contract.\u201d To suggest, as appellant\u2019s briefs clearly do, that a contract cannot be breached by proofs of negligent performance or by non-compliance with the performance promised, is not only unique but it is also not reflective of New Mexico law. See Constructors, Ltd. v. Garcia, 86 N.M. 117, 520 P.2d 273 (1974) (costs to buyer for repair of work negligently done by seller, under contract for services, is recoverable as measure of damages in buyer\u2019s claim for breach of contract); Pillsbury v. Blumenthal, 58 N.M. 422, 272 P.2d 326 (1954) (plaintiff entitled to recover costs of repairing latent defects because of defendant\u2019s poor workmanship and materials, in breach of contract suit against defendant contractor); Andriola v. Milligan, 52 N.M. 65, 191 P.2d 716 (1948) (defendant\u2019s inability to drill to depth specified by contract because of his own [negligent] operations supports breach of contract suit for damages in amount of cost for drilling new well).\nIt was said in Andriola, supra, that \u201c[w]here a person is employed in work of skill, the employer buys both his labor and judgment; he ought not to undertake the work if he cannot succeed, and he should know whether it [sic] will or not.\u201d 52 N.M. at 67, 191 P.2d 716.\nThe contract in this case provided that Hiatt\u2019s company would \u201crenovate\u201d the roof and \u201c[m]ake all necessary repairs in present roof to make roof mechanically sound\u201d; that it would \u201c[f]orm [a] reinforced waterproof membrane over [the] entire roof,\u201d and would finish the roof with a heat reflective coating. It provided, also, that plaintiffs had the option to recover the roof with the reflective coating \u201canytime within the time limit of the guarantee period (25 years from the completion date of work). * * * [at a specific price] regardless of any price increase in the interim.\u201d\nThe court\u2019s findings and the evidence indicate that flashing around the chimney area, improperly installed by the original contractor, was a major cause of leakage. Additionally, the roofing material applied by Hiatt terminated approximately a half-inch from the chimney area and was not sealed. Plaintiff\u2019s expert believed that both conditions allowed moisture to accumulate and ultimately saturate the insulation installed by Hiatt and leak through into the Cochrell residence.\nIt does not matter that the original flashing work was not done by defendant. Under his contract, he agreed to \u201crenovate\u201d and make \u201call necessary repairs\u201d to produce a \u201csound\u201d roof. He promised a \u201cwaterproof\u201d cover over the \u201centire roof.\u201d To \u201crenovate\u201d means to make new after decay, destruction, or impairment; to restore worn-out, unsafe, or damaged parts. William A. Doe Co. v. City of Boston, 262 Mass. 458, 160 N.E. 262, 263 (1928). To \u201crepair\u201d is \u201cto restore by replacing a part or putting together what is torn or broken * * to restore to a sound or healthy state * * * to make good; [to] REMEDY. * * * \u201d Webster\u2019s Third New Int\u2019l Dictionary (1976 ed.). Under the contract, appellant was obliged to do whatever was necessary to produce a waterproof roof.\nThe reference in the contract to an option granted to plaintiffs during \u201cthe guarantee period (25 years from the completion date of work),\u201d especially since \u201c25\u201d was filled in the blank space by appellant, and other evidence given, sufficiently supports Finding 18.\nWe review supported findings in the light most favorable to the successful party. Southern Union Exploration Co. v. Wynn Exploration Co., Inc., 95 N.M. 594, 624 P.2d 536 (Ct.App.1981). There is ample evidence to sustain the ultimate findings of deficient workmanship, inadequacy of the work done, resultant damage, and cost of repair and replacement. The portion of Finding 13 relating to \u201cdeficient materials,\u201d and Findings 19, 23 and 27, all challenged by appellant, are unnecessary to the trial court\u2019s decision. Conclusions 4 and 6 place the cause of damage on \u201cthe pulling away of the roof coating and covering from the fire walls and chimney area and failure of the roof to withstand normal weather conditions\u201d and not because of \u201cany matters expressly excluded or excepted\u201d in the contract.\nWhether any or all portions of the challenged findings were erroneous, if they were unnecessary to the court\u2019s decision (and we have shown they were unnecessary), their incorrectness affords no grounds for reversal. Matheison v. Hubler, 92 N.M. 381, 588 P.2d 1056 (Ct.App.1978).\nThe judgment is affirmed.\nHENDLEY and NEAL, JJ., concur.", "type": "majority", "author": "WALTERS, Chief Judge." } ], "attorneys": [ "Paul D. Gerber, Gerber, Ives & Gramer, Santa Fe, for plaintiffs-appellees.", "Joseph G. Lawler and Houston Morrow, Sommer & Lawler & Scheuer, P.A., Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "638 P.2d 1101\nA. B. COCHRELL, and June Cockrell, Plaintiffs-Appellees, v. S. L. HIATT, d/b/a Hiatt Construction Co., Defendant-Appellant.\nNo. 5200.\nCourt of Appeals of New Mexico.\nDec. 22, 1981.\nPaul D. Gerber, Gerber, Ives & Gramer, Santa Fe, for plaintiffs-appellees.\nJoseph G. Lawler and Houston Morrow, Sommer & Lawler & Scheuer, P.A., Santa Fe, for defendant-appellant." }, "file_name": "0256-01", "first_page_order": 286, "last_page_order": 289 }