This section contains the nature of the case and procedural background.

D was a real estate developer. D entered into a contract with P to build a spec. home on a lot in one of his developments. When the construction work was commenced, D encountered rock close to the surface, and instead of excavating without too much trouble, D placed the house upon the rocks which resulted in the entrance of the garage to street of 43 feet with a difference in elevation of 9 feet 8 inches. This was a 22.5% grade. Evidence at trial showed that a grade of 12% was considered the permissive maximum. The plans were silent as to grade. While the construction was ongoing P complained of the situation but was told not to worry by D because the final grade would not exceed 10% when finished. D did not contend that the current grade was reasonable or that P had no cause for complaint. D claims that the difference in value should have determined the damages and that the trial court erred by not allowing such evidence. The trial court charged the jury that the measure of damages is the fair and reasonable cost to remedy the defect to get a reasonably usable driveway. D appealed. The court of appeals adopted D’s contention that the measure of damages is the difference between the value of the building as constructed and its value had it been constructed in conformity to the contract or the cost of repairs whichever is lesser.

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