Beattie Manufacturing Co. v. Heinz

120 Mo. App. 465 | Mo. Ct. App. | 1906

GOODE, J.

(after stating the facts).

The plaintiff was bound- to observe in every particular, the drawings, plans and specifications prepared by defendants’ architects. Many clauses in the contract so provided, and there were other clauses providing for the enforcement of this duty. The plans took for granted that the floor of tbe Agricultural Hall, at the south half of section 108, was level, and contemplated the erection of a booth on that level surface. The floor line shown on the drawings is level and the plan of the marble base of the booth provided for a base of the uniform height of six inches around the entire structure; thus indicating that the surface on which it was to be built was level, as otherwise the base would be voder in some portions than in others. Various details and dimensions of the structure pointed to the same assumption. One clause of the contract was that plaintiff should lay a finished floor on top of the rough floor of the Hall and flush with the aisle; a requirement which, read in connection with the uniform width of base required, obviously presupposed the floor of the Agricultural Building was level. That this was the supposition of the architects is not denied; but it is contended that as plaintiff knew the floor of the building had been laid, it was remiss in not ascertaining by measurements whether or not it was level, before preparing the parts of the booth at its factory. No term of the contract imposed that duty on plaintiff, nor is there proof that the custom of builders did. What plaintiff was bound to do was to construct the booth according to detailed drawings, plans and specifications prepared by architects chosen by defendants; and not correct those documents except to verify the dimensions given; an expression which, in the absence of proof on the subject, we take did not impose on plaintiff the duty of ascertaining whether or not the architects had proceeded on a radically erroneous theory in drawing the plans. We know of no principle of law on which we can read into the contract a requirement that plaintiff was to take the level of the floor before going to work, and notify defendants that the plans of its architects would have to be remodeled. If the case is to stand on the negligence of the parties, then that of the defendants, or their architects, is the greater in not ascertaining that the floor was level before they prepared all the plans and details of so costly a structure on the supposition that it was. Our opinion is that the proper interpretation of the contract is that plaintiff was justified in taking for granted that the rough floor on top of which it Was to lay a smooth one and build the marble base of the booth, was level, as shown in the plans and specifications. In other words, that defendants agreed to furnish the requisite surface for plaintiff to build on. [Haynes v. Second Baptist Church, 88 Mo. 285; King, etc. Co. v. St. Louis, 43 Fed. 768; Wyandotte, etc., R. R. v. King Bridge Co., 100 Fed. 197, 204; White v. School Dist., 159 Pa. 261.] We hold defendants were not entitled to deduct the daily liquidated damages for the delay in completing the booth caused by the unevenness of the floor. The delay caused by the errors in the plans of the second story and- the dome was unquestionably the fault of the architects, for which plaintiff cannot be held responsible. The rule of law that, if a party contracts to do a thing in a certain time, without exceptions on account of contingencies which may arise, he is liable for non-performance in the time stipulated though unavoidably prevented from performing, is not applied when he is hindered by the fault of the other party. [Helm v. Wilson, 4 Mo. 41; Little v. Mercer, 9 Mo. 218; Weeks v. Little, 89 N. Y. 566; Van Buren v. Diggs, 52 U. S. 461.] All the extra work for which plaintiff recovered was a consequence of the several errors in the plans we have recited and was authorized by the architects. The booth could not be built according to the. plans, and by the contract plaintiff was required to follow them. It endeavored to do this and in the endeavor constructed the various parts, but the slope in the floor and the errors in the plans of the second story and the dome, made it necessary to work over many of these parts. No reason is seen why plaintiff should not be compensated for this work, which the contract plainly did not contemplate should be covered by the agreed price.

It is insisted that an accord and satisfaction was established by proving plaintiff cashed the check sent to it for acceptance in full payment of the balance due. This position would be well taken were it not for the acts of the defendants subsquent to the tender of the check; but those acts preclude us from holding there was no evidence to support the trial court in finding the acceptance of the check was not regarded as full payment, or an accord and satisfation, by either party. Plaintiff positively refused to take the check in payment ef the balance demanded and notified defendants it would be held in abeyance pending further negotiation for a settlement. One of the defendants came to St. Louis while plaintiff still held the check, and offered to compromise by making a payment in addition to the amount of the check. When the offer was declined by plaintiff, said defendant left without demanding the return of the check and with a promise that the effort to settle should continue. If it be conceded that cashing the check after this incident would still have constituted an accord and satisfaction, we have the further fact that nearly two months after it had been cashed, and when, in view of the usage of business, it may be inferred that defendants were apprised that it had been, they still carried oh a correspondence looking to a compromise and a further payment. In other words, did not elect to treat the matter as having been settled by an accord and satisfaction. This circumstance was evidence to support the finding that defendants had waived any defense they might otherwise have maintained because of plaintiff’s use of the check. Cashing it could be an accord and satisfaction only by construction of law and on the theory that defendants had tendered it in satisfaction and if it was accepted, the presumption would be raised in their favor that it was accepted on the condition attached to the tender. Now commonly an accord and satisfaction is what the words import, namely, an actual agreement about a matter in dispute and a settlement pursuant to the agreement. [Schermerhorn v. Laines, 7 Johns. (N. Y.) 311; Hart v. Baller, 15 S. & R. 162.] No doubt the tender of a note or check in full satisfaction of a controversy and its unconditional acceptance will estop1 the accepting party from asserting that the-dispute remained unadjusted. [Jarrett v. Morton, 44 Mo. 275.] But if the party who tendered the payment,, in whatever' form, shows by his subsequent behavior that he does not insist on the condition originally attached, to-wit; that it be- received in full satisfaction, and by still later conduct, after he knows the payment has been applied by the creditor, shows that he regards-the matter as still awaiting adjustment, no accord and; satisfaction ought to be presumed in his favor.

The declarations of law are all complained of, but need not be separately examined; as it appears from them that the court tried the cause and declared the law according to the views we have expressed.

The judgment is affirmed.

All concur.