Soike v. Evan Matthews and Co.

LARSON, Justice.

Lowell and Karen Soike retained Evan Matthews and Company to do cement work for their new house. When it appeared the house has been “staked” too low in relation to the street, the Soikes sued the contractor. While the petition and pretrial orders referred to duties arising out of the contract, the jury was also instructed on the theory of negligence. Matthews complains on appeal that it was error for the trial court to instruct the jury on negligence arising out of the performance of the contract because (1) the “staking” of the house was voluntarily assumed, and independent…