The plaintiff, hereinafter designated respondent] commenced this action against the Wright-Osborn Company as contractor, hereinafter styled contractor, and against the Fidelity & De
The respondent alleged that it entered into a contract with the contractor whereby the latter agreed to furnish all the material and labor necessary to complete a heating and ventilating plant or system in a high school building which respondent was then erecting at Salt Lake City, Utah, that the contractor was required to furnish a bond for the faithful performance of its contract, and that it would promptly pay for all labor and material. The contract is set forth in full as an exhibit and is made a part of the complaint. The terms and conditions of the contract are numerous and specific. It is not necessary, except in one partncular, to set forth the many conditions and provisions contained in the contract, since those that are deemed material will be specifically referred to in the course of the opinion. Since the action, however, is more particularly based upon article 13 of the contract, and in view that one of the controlling questions involved on this appeal depends upon the construction of certain provisions contained therein, we quote said article in full. It reads as follows:
“Should the contractor, at any time refuse or neglect to supply a sufficiency of properly skilled workmen or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect, or failure being certified by the architects, the said second party shall be at liberty after three days’ written notice to the contractor or to any of his agents to provide*457 any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractor under this contract; and such certificates of the architects, together with the action of the board thereon, shall be final and conclusive; and if the architects shall certify that such action be taken, the said second party shall also be at liberty at once to terminate the employment of .the contractor for the said work, and immediately to enter upon the premises and to take possession of all materials thereon, together with all tools, machinery, apparatus and conveniences, and in case of such discontinuance of the employment of the contractor, he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expenses incurred by the said second party in,finishing the work, such excess shall be paid by the said second party to the contractor, but if such expense shall exceed such unpaid balance, the contractor shall pay the difference to the said second party. The expense incurred by the said second party, as herein provided, either for furnishing materials, or for finishing the work and any damages incurred through sueh default, together with the value of the use of tools, machinery, materials, and conveniences that may be taken by the said second party, shall be audited and certified by the architects, and the decision of the said second party thereon shall be final and conclusive. And this shall be construed to mean not only the completion of the heating and ventilating system for the buildings, but the removal of all rubbish from the same, as well as from the grounds. ’ ’
The respondent, after alleging that the contractor had entered into the contract as aforesaid, also further alleged:
That the appellant had made and delivered to the respondent a certain bond in which appellant had agreed to indemnify the respondent in case said contractor should fail to comply with the conditions of its contract in completing and installing said heating and ventilating plant; that the contractor had failed to comply with the provisions of its contract in the following particulars, namely: That the contractor had “attempted to furnish material of a poor and inferior and im
Respondent then alleged that it had completed the work the contractor had agreed to do, specifically stating the-cost thereof, and demanded judgment for the amount it had expended in excess of the contract price. A copy of the indemnity bond made and delivered by the appellant was also attached to and made a part of the complaint. The special
“We have made an exhaustive investigation of the facts and circumstances relative to the performance of the contract existing between.your board and the Wright-Osborn Company, dated July 1, A; D. 1912, and with great particularity have examined into the facts relative to the performance by that company of said contract, and we desire to report and certify as follows:
“That said company acting as said contractor, has failed and neglected to perform said contract in many particulars, some of which failures and neglects we will particularly refer to.
“In the first place, the said contractor has brought upon the ground and delivered at the building, certain galvanized iron for the air ducts to be constructed by said contractor in the building, which galvanized iron is of poor quality and not of the quality required by the specifications furnished by us to the contractor, and we have refused to accept said iron.
“In the second place, the contractor has delivered at the building and is now engaged in putting in place three Ke-wanee boilers. The boilers tendered by the said contractor are not such as are called for by the specifications, and said boilers are insufficient for the purposes sought to be accomplished by them. After a thorough investigation, we are satisfied that these boilers tendered by said contractor will not sustain a pressure to exceed 110 pounds, and that you will be unable to insure said boilers for a greater pressure than 110 pounds and the boilers required by the specifications call for a pressure of 125 pounds. And then the tubing of the boilers is 3i inches in diameter, whereas the specifications call for tubing 4 inches in diameter. And we are reliably informed that the boilers tendered by the contractor are of less value than the boilers called for by the specifications.
“Furthermore, the contractor has neglected to supply a sufficiency of properly skilled workmen, and from the situation that now exists it appears that said contractor will be un*460 able during the continuance of this contract to supply a sufficiency of properly skilled workmen, and the said contractor has failed and is still failing to prosecute the work with promptness and diligence, and that the contractor indicates a disposition in the handling of this work that convinces us that said contractor will be unable to carry on the work with that degree of expedition contemplated by the contract; in fact, the contractor indicates so little capacity that it is difficult under all the existing conditions to prophesy a date when said contractor will complete the contract in accord with the plans and specifications.
"On account of certain labor union difficulties which have arisen between this contractor and the labor unions of this city, it seems that the entire work in the building, not only that contemplated by the contract with the Wright-Osborn Company, but that required from other contractors working upon said building, will be so delayed and hampered that we are quite discouraged and cannot come to any other conclusion than to say that, if the high school building is to be erected, within the time contemplated by your honorable board and by the contracts which your board has entered into, and in accord with the plans and specifications, no other course of action can be followed than for your honorable board to terminate the employment of the said contractor, which employment arises by virtue of that certain contract existing between your board and the Wright-Osborn Company.
"The above statement while not intended to be exclusive, contains the important reasons for the certificate and recommendation which follows, and we believe your honorable board will deem it sufficient to justify said certificate and recommendation.
"We therefore certify that it is necessary for your honorable board to terminate the employment of the said Wright-Osborn Company, which employment arises by reason of that certain contract existing between your board and the said Wright-Osborn Company, said contract bearing date July 1, A. D. 1912, and we certify that said action shall be taken by you, and we recommend that said employment of said Wright-*461 Osborn Company existing by reason of said contract shall immediately be terminated.”
The contractor did not answer the complaint nor appear in the action. The appellant filed its answer, in which, after making specific admissions and denials, it set np various defenses, all of which are sufficiently reflected in the points its counsel have raised and which are hereinafter discussed.
The case was tried to a jury, which returned a verdict in favor of the respondent, from which this appeal is prosecuted.
Counsel for appellant in their brief have grouped all of their assignments of error under the following heads: (1) and (2) That the certificate of the architect on which the employment of the contractor was terminated is void; (3) that the employment of the contractor was terminated without notice, and is therefore void; (4) that the appellant is not liable in this action because the respondent was not legally damaged; (5) that no recovery can be had on the indemnity bond because it ceased to be in force before the cause of action arose; (6) that the respondent was itself in default, and h§nce could not legally enforce a forfeiture against, and therefore terminate, the employment of the contractor; (7) that the court erred in restricting the cross-examination of the architect; (8) that the court erred in permitting respondent to amend its complaint in certain particulars; and (9) that the court erred in withdrawing certain issues from the jury.
Counsel state their first objection to the architect’s certificate in the following words:
‘ ‘ This suit is brought under the contract; and plaintiff must therefore show the performance of conditions on its part, one of which is the issuance of a valid architects’ certificate authorizing termination. The certificate here is void because based upon a finding of fact not submitted to the architect and which he had no authority to decide.”
We have read the evidence and the charge of the court with care. We cannot perceive in what respect the architect failed to comply with the provisions of the contract in making the certificate. True, counsel argue that the architect did not act upon his own judgment, and, further, that he did not act in good faith in making the certificate. The court submitted
The same is true with respect to the contention that the architect did not act in good faith in making the certificate. That issue was also fully covered by the court’s charge, and the jury also found against that contention.
The first point raised by counsel must therefore fail.
In making this contention counsel seem somewhat inconsistent. They strenuously insist that the architect in making the certificate must act only upon personal observation and knowledge. If that contention be sound, how can they consistently contend that Eldredge, who had absolutely no knowledge respecting the matters contained in the certificate, should participate therein? For him to have done so would have been the same as though a stranger had been called in to act. That certainly is not what is contemplated by the provisions of the contract.
This objection must therefore likewise fail.
“being certified by the architects, the said second party (respondent) shall be at liberty, after three days’ written notice to the contractor, * * # to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractor under this contract; and such certificate of the architects, together with the action of the board thereon, shall be final and conclusive;*464 and if the architects shall certify that such action he taken, the said second party shall also be at liberty at once to terminate the employment of the contractor, * * * and immediately enter upon the premises,” etc. (Italics ours.)
Appellant’s counsel vigorously insist that, in view that in this ease the employment was terminated upon the certificate of the architect without giving three days’ notice to the contractor, therefore the termination was void and of no effect. In support of the contention counsel, among other cases, cite McClellan v. McLemore (Tex. Civ. App.),
“such refusal, neglect, or failure being certified by the architect the owner shall be at liberty, after three days’ notice to the contractor, to provide any of such labor or materials and*465 to deduct the cost thereof from any money then due or thereafter to become due to the contractor under this contract; and if the architect shall certify that such refusal, neglect or failure is sufficient ground for such action the owner shall also he at liberty to terminate the employment of the contractor,” etc. (Italics ours.)
Notwithstanding that the foregoing language, to our minds, is much more favorable to counsel’s contention, the Texas Court of Civil Appeals expressed some doubt with regard to whether the three days’ notice is required or not in case the contract is terminated upon broader grounds. The provision in the contract here which gave the respondent the right to terminate the employment reads quite differently from the provision in the Texas case. After providing that after giving three days’ notice to the contractor respecting the latter’s failure to comply with the provisions of the contract there enumerated the owner may supply the defects and recover all costs thereof from the contractor, the contract further provides :
“And if the architects shall certify that such action be taken, the said second party shall also be at liberty at once to terminate the employment of the contractor,” etc.
“Contractor will state in his bid a guaranteed maximum cost for the completion of said contract as called for, and also state the percentage for which he will perform the work, but it must be distinctly understood that payment will be based on and made only for the actual cost of labor and material, and the precentage will be based thereon. Contractor will also note that he must be in position to take up the work immediately and complete same by August 1, 1913.”
Upon the foregoing advertisement there were seven bidders who submitted bids.. The highest bid for completing the heating and ventilating plant was -for $68,750 and 11^ per cent, additional for superintendence, while the lowest bid was for $65,000, plus 10 per cent. for. the latter purpose. The contract was let to the lowest bidder. The original contract price for completing the plant was $53,879. The bids were thus all largely in excess of the contractor’s original bid. The evidence is undisputed that it cost the sum of $72,000 to complete the heating and ventilating plant. That sum was $18,-021 in excess of the contractor’s bid, and it was stipulated at the trial that, after deducting all credits due to the contractor, if the respondent was entitled to judgment under the facts and the law, then the amount thereof should be $17,000.
Assuming, without deciding, counsel’s contention that, under the law, respondent was required to advertise for bids to complete the plant precisely the same as it was required to do in order to construct the high school building, and further assuming that the appellant, without showing actual prejudice, may legally insist upon that method of completing the plant, yet we fail to see in what respect respondent
The next point argued is that the respondent was itself in default when it terminated the employment of the contractor, and hence its action in that regard was illegal. The contention is based upon the familiar principle that, where one of the contracting parties is in default, he cannot legally enforce a forfeiture based on a default of the other party to the contract. That such is the law may be conceded. It must suffice to say, however, that there is nothing in this case to make the principle applicable.
It is further contended that the court erred in restricting appellant’s counsel in cross-examining the architect. A careful reading of the cross-examination of that witness shows that the court gave counsel all the latitude they were entitled to under the law. Indeed, the court in many instances went far beyond what counsel could demand as a matter of right, and
Nor is there any merit to the eighth point, namely, that the court erred in permitting the respondent to amend its complaint. The court restricted the operation of the amendment, and, as restricted, it was entirely harmless.
Finally, it is contended that the court erred in withdrawing certain issues from the jury in its charge. We have carefully read the court’s charge to the jury, and, after doing so, have failed to discover anything to justify counsel’s contention. The charge covers every issue presented by the pleadings and the evidence. Moreover, the charge covers many collateral matters, which, from an inspection of appellant’s requests, were evidently taken therefrom by the court.
The record discloses that the ease was fairly presented and ably defended, and while, upon the record alone, we might, on some facts, have arrived at a conclusion different from that arrived at by the jury, yet every essential fact is supported by substantial evidence. We remark that every objection and exception is based upon what is usually termed technical grounds. While it is true that parties should be given, and clearly have, the right to insist upon such grounds, yet it is also true that where, as here, all legal and technical rights have received full consideration, and where nothing is demanded except that which the appellant clearly obligated itself to fulfill, courts should not shrink from enforcing the obligations unless there is some good legal reason why the obligations should not be enforced.
This disposes of the appeal in so far as it affects the respondent. We' now proceed to a consideration of the appeal from the judgment in favor of the intervener.
The intervener recovered judgment against appellant upon that provision of the bond wherein appellant obligated itself to pay for all "labor or material used in the prosecution of the work provided for in said contract.” In substance, the intervener alleged that it had sold and delivered to the contractor the three boilers that are mentioned in the proceedings in respondent’s appeal, and had also sold and delivered
The principal assignments on that appeal relate to the findings of fact. The findings of the court cover every phase of the case. After making the preliminary findings the court found:
“That on and between the 1st day of November, 1912, and the 10th day of January, 1913, at Salt Lake City, Salt Lake county, state of Utah, the intervener sold and delivered to said defendant Wright-Osborn Company, at its special instance and request and in the ordinary course of business, plumbing, heating and ventilating materials consisting of boilers, smokestack, breeching, black pipe and fittings of the agreed and reasonable value and purchase price of $5,863.71, f. o. b. Salt Lake City, Utah, all as appears from an itemized statement of said account hereinafter set forth.
‘ ‘ That all of said materials so sold and delivered as aforesaid were expressly ordered and purchased by said defendant Wright-Osborn Company, and were in good faith sold and delivered by the intervener to said defendant for use in the prosecution of the work provided for in the said contract between the plaintiff, the board of education of Salt Lake City and the said defendant Wright-Osborn Company hereinabove referred to.
“That all of said materials were actually delivered by the intervener to said defendant Wright-Osborn Company on the premises upon which said high school building was in process of erection, and all of said material was used in the prosecution of the work provided for in said contract.
‘ ‘ That in the sale of said materials no special terms of time*472 of payment was agreed upon; tbat said materials were bought and sold upon open running account payable on the 1st day of the month following deliveries.”
The court further found:
“That said defendant Wright-Osborn Company, before placing its order with the intervener for tubular boilers, advised the plaintiff and its architect that it was negotiating with this intervener to purchase from the intervener three Kewanee tubular boilers, and the said plaintiff, on or about the 9th day of July, 1912, expressly approved of the three Kewanee tubular boilers to be furnished by the intervener, and thereupon said defendant Wright-Osborn Company placed its order for said boilers with the intervener.
“That this intervener received the specifications for said boilers through the Utah state agent of the Kewanee Boiler Company, who in turn made up said order from specifications relating to said boilers prepared by the architect for the plaintiff and furnished to the defendant Wright-Osborn Company, and in its hands at the time said order was placed.
“That the said state agent for the Kewanee Boiler Company and the defendant Wright-Osborn Company and the intervener made up said order in good faith, believing that it conformed exactly to the specifications adopted for the same by the plaintiff, and the intervener filled said order in good faith, and the said boilers so as aforesaid furnished conformed in every particular with the order so placed with the intervener.
' ‘ That all of the other material furnished by the intervener conformed to the order placed by said defendant Wright-Os-bom Company with the intervener, and conformed to said contract and the specifications thereto attached.
“That the boilers were received upon the high school premises during the month of October, 1912, and were shortly thereafter placed in th& -permanent positions designed for them in the boiler room, and prior to the 17th day of January, 1913, were partly bricked in.
“That said boilers were thereafter, and subsequent to the 17th day of January, 1913, removed from their positions in •*473 said boiler room by the plaintiff, and other boilers were sub-' stituted.
“That said boilers were not in any particular defective in workmanship, design or material, and were fully capable of discharging the function required of boilers in connection with the heating and ventilating system of said high school building, and could have been insured up to 125 pounds ’ pressure by the Hartford Fire Insurance Company.
“That all of the materials sold and delivered by the in-tervener as aforesaid, excepting only the said three tubular boilers, and not exceeding 10 per cent, of the pipe and fittings, entered into and became a part of the finished high school structure.
“That the stack and breeching were ordered and sold in connection with and as, a part of said three boilers, and entered into and became and still is a part of said finished high school structure.
“That the three boilers, while removed from the boiler room, were not removed and were not ordered removed from the premises, and were not returned by the plaintiff to the defendant Wright-Osborn Company, or to this intervener, and all of the materials so, as aforesaid, sold by the intervener, were, and still are, held and retained by plaintiff upon the high school premises, and were all used in the prosecution of the work provided for in said contract. * * *
“That by virtue of an order made by this court in this cause the defendant Fidelity & Deposit Company of Maryland has been subrogated to all of the right, title, and interest of the plaintiff in and to any and all of said materials which did not become a part of the finished structure, subject to the payment of the judgment in favor of plaintiff. ’ ’
The court also found that there was a balance due inter-vener for said material amounting to $3,113.71, for which sum, with interest, judgment was entered in its favor.
Appellant contends that the findings are not supported by the evidence.
One of the questions submitted to the jury in the respondent’s ease was whether specifications No. 1, or specifications No. 2, to which the boilers had to conform, had been adopted by the architect. The jury found that specifications No. 1 had been adopted by the architect, and that the boilers purchased by the contractor did not comply with those specifications, and hence the contractor had failed to comply with the terms of his contract, in that he had failed to furnish boilers in accordance with the specifications. Upon the other hand, the judge who tried the intervener’s case, and who also presided at the trial of respondent’s case, found that specifications No. 2 were the ones that had been adopted by the architect, and that the boilers in question which were purchased by the contractor from the intervener were in all respects as required by the specifications. The findings of the jury in respondent’s case and the findings of the court in the intervener’s case are therefore in direct conflict. The findings of the jury and those of the court are, however, based upon conflicting evidence. It was the exclusive province of the jury to determine the weight of the evidence and the credibility of the witnesses in respondent’s case and such was the exclusive province of the judge in the intervener’s case. The verdict of the jury upon the issues presented in respondent’s case and the findings of the court in the intervener’s case must therefore be considered as entirely independent, and as though they constituted the result in two separate and distinct eases. We, under our Constitution, are powerless to interfere upon a question of fact in case there is some substantial evidence in support of any fact which is in dispute and which is material to the controversy. Nor, under the evidence, are the vérdict of the jury and the findings of the court so inconsistent that we can say as matter of law that both cannot stand. It may be conceded
Suppose in this case the school building and the boilers had been destroyed immediately after they had been placed in the building, but before they became a part of the heating plant. They then would not, and, could not, have become an integral part of the plant, and yet would any one seriously contend that, under the facts and circumstances before stated, the contractor and his indemnitor would not be liable to the intervener for the unpaid purchase price? Again, suppose that the boilers had been purchased and delivered in good faith, and pursuant to the contract, and for the purpose contemplated therein, and that they in all respects had conformed to the specifications, and the title thereto had passed to the
It is not necessary to review or to refer to the many cases that are cited by counsel in their briefs. The questions decided in the cases referred to by appellant’s counsel in nearly every instance arose under mechanic’s lien statutes. It is general knowledge that those statutes differ in the different states. For that and for other reasons which appear in the decisions, those cases can be given no controlling effect in this case, and hence need no further consideration.
It is further contended that the trial court erred in applying the payments made by the contractor to the intervener on account for materials sold and delivered. We have already held that the three boilers were furnished pursuant to the contract and were covered by the indemnity bond. If that conclusion is sound, and we think it is, then, as a matter of course, the question of the application of payments is not material in this case so far as that question affects the purchase price of the boilers. What is true of the boilers is, however, also true of the ten per cent, of the pipe and other materials that were sold and delivered by the intervener to the contractor, but which did not actually become a part of the heating plant. All of the materials sold and delivered by the intervener were sold and delivered pursuant to the contract entered into by the contractor with the respondent, and while not quite all of the material actually became a part of the heating plant, neverthless all came within the rule announced by the Supreme Court of Washington in the case of Crane Co. v. United States, etc., Co., supra. The question of the application of the payments is therefore also not applicable to those materials. It therefore is not necessary for us to determine the important question respecting the rule governing the application of payments, as that question may arise between a material-
The judgment in favor of the respondent and the judgment in favor of the intervener are therefore affirmed, with costs to respondent on the appeal from the judgment in its favor and with costs to the intervener on the appeal from the judgment in its favor.