dissenting.
I agree that under the evidence produced at trial the court could properly have found the contractor liable for damages resulting from the frozen floor. 17A C.J.S. Contracts, Section 515; 13 Am.Jur.2d Building & Construction Contracts, Section 64. Since those damages exceeded the claimed lien amount, the court did not err in discharging the lien and refusing to award attorney fees to the contractor. Indiana Rules of Procedure, Trial Rule 18(C), IC 32-8-3-14.
However, I believe the majority has overextended the meaning of the stipulation entered into by the parties to reach its final conclusion. While they agreed that the "material" and "workmanship" was satisfactory, they additionally agreed that the issue for trial was responsibility for the freezing of the concrete.
It appears to me that the parties and the trial court treated the stipulation as obviating inquiry into the quality of the materials or the workmanship that went into pouring the floor. I believe we should do likewise.
Furthermore, it is our duty to affirm the trial court if the judgment can be sustained on any viable ground supported by the evidence. Estate of Fanning (1975), 263 Ind. 414, 333 N.E.2d 80.
Having appropriately found the contractor liable for the damage caused by the freezing of the concrete, the trial court was confronted with proof of damages. Ordinarily, the measure of such damage is the cost of repair. Orto v. Jackson (1980), Ind.App., 413 N.E.2d 273. When repair is not reasonable, the difference between the reasonable value of the building as constructed and the contract price may be used. James I. Barnes Const. Co. v. Washington Twp. (1962), 134 Ind.App. 461, 184 N.E.2d 763.
The owners' evidence showed damages up to $8000 and the decision was within the evidence.
I would therefore affirm the judgment.