84 Neb. 723 | Neb. | 1909
July 14, 1904, the • plaintiff, a contractor and builder, and the defendant, A. I. Root, Incorporated, entered into a written contract whereby the plaintiff for a stipulated compensation agreed to construct a certain building for the defendant. Said agreement contained the following
This action was instituted to foreclose the plaintiff’s lien. Defendant admitted the written contract, and also admitted liability for some of the extras pleaded by plaintiff, and denied others. He pleaded a counterclaim, which included an item of $1,500 damages for plaintiff’s delay in the construction of the building. The lovver court rejected defendant’s claim for damages, and found that the plaintiff was entitled to credit for the original contract price, $18,821, and for extras, $1,772.02, and that he was chargeable with the following: Cash paid during the construction of building, $14,385.15; for small items of defendant’s counterclaim, $174.10; for amount paid by defendant to subcontractors upon liens by them filed, $6,823.01. The difference being in favor of the defendant, the trial court gave him ■ j udgment therefor, which, with allowances for interest, amounted to $681.61. The defendant, contending that he is entitled to a larger judgment, has appealed to this court.
Two questions are presented for determination: First, is the plaintiff entitled to recover for the disputed extras claimed? Second, is the defendant entitled to recover damages for 'the delay in completing the building? Of
It is contended that these items were not extras, but were embraced in the written contract. This evidence also is conflicting, and it is impossible for one who is not an architect or a builder to take the contract, the plans and the specifications, and from them alone to determine whether or not certain material furnished and certain work performed are contemplated and provided for by the contract, or are supplemental to or additions to the plan of the building previously arranged. It is apparent that on account of so many details it is very difficult after the work is completed to adjust the m’atters here in dispute. That the plaintiff did work in addition to what would have been required had the contract been strictly complied with is apparent; but it /is the defendant’s contention with reference to many of the items in controversy that the' additional work Avas made necessary because the plaintiff had first proceeded contrary to the contract, which necessitated the doing of the work over again in order to conform thereto. The defendant argues that he is not required to pay the same because no written order was given therefor as provided in the contract. The architect was the defendant’s agent and as such superintended the construction of the building, and it is claimed that he, acting for the defendant, ordered and directed certain alterations and changes to be made; that his directions were given orally and complied with by the plaintiff, and that the defendant, thus acting through his authorized agent, Avaived the provision of the contract requiring such alterations to be made in writing. There can be no doubt but that such a provision in a builder’s
In Gray v. La Société Française De Bienfaisance Mutuelle, 63 Pac. 848 (131 Cal. 566), it was held: “Specifications for a building contract provided that no extra work should be allowed except on a written order from the architect, approved by the building committee, and that, on any alterations or changes, the character and valúa
In Langley v. Rouss, 77 N. E. 1168 (185 N. Y. 201), it was held: “A contract for the erection, alteration,. and extension of certain buildings made the architect the agent of the owner, and stipulated that no alteration should be made in the work described by the specifications, except on the written order of the architect, and that no extra work would be allowed unless an itemized estimate was submitted by the contractor, and the architect’s order in writing was given for the same. Held, That the architect could not enlarge his powers by waiving the requirement that the contractor should furnish estimates of extra work and obtain a written order from the architect therefor.” The contract construed in the last case cited is almost identical with the contract here in controversy with reference to the agency of the architect, and also' with reference to the alterations which might be made. In the opinion it is said: “The architect was expressly made the agent of the owner for the purposes of the contract, but such agency, so far as it related to making alterations, or directing that extra work should be done, was limited, as in the contract stated, to such orders as he should give in writing. The restrictions on the authority of the architect were for the protection of the owner. Where contracts, including plans and specifications, involve a great, amount of detail, and the merits of claims for alterations and extra work are difficult to determine and adjust after the work is completed, a provision requiring the contractor to submit itemized estimates of the expense of proposed alterations or extra work, and that the order of the architect therefor should be in writing, is reasonable and tends to a more definite
In Sheyer v. Pinkerton Construction Co. 59 Atl. (N. J.) 462, it was held: “Under a building contract providing that no alteration shall be made except on the written order of the engineer, a recovery cannot be had for the expense of alterations unless an order is produced, or it is shown that the stipulation was waived, or the contractor fraudulently lured into making the alteration, without an order.”
In Woodruff v. Rochester & P. R. Co., 108 N. Y. 39, in reference to a claim for extras under a contract for the construction of a railroad, the contract providing that no extras were to be paid for unless made upon a written order, the court said: “This was one of the terms of the contract and we are unable to perceive that the engineers had any power or authority to alter or change it. It was inserted in the contract to protect the defendant from claims for extra work which might be based upon oral evidence, after the work was completed, and when it might be difficult to prove the facts in relation thereto. If the engineers in charge had an unlimited authority to change the contract at their will, and to make special agreements for work fairly embraced therein, then the defendant had very little protection from the reduction of their contract to writing. If these engineers Avere the agents of the defendant, they were its agents with special powers, simply to do the engineering work and to superintend and direct as to the execution of the contract; but they had no power to alter or vary the terms of the contract or to create obligations binding upon the defendant not embraced in the contract.” The above was quoted with approval in Baltimore & O. R. Co. v.
In McLeod v. Genius, 31 Neb. 1, it was held that the owner was liable for work and material furnished by the contractor not called for by the original written contract, where the owner or his authorized agent by subsequent oral agreement promised to pay therefor, or knew that the contractor would charge for the same as extras and assented thereto or permitted the same without objection. In the opinion it is said: “But he (the contractor) cannot recover as for extras for changes and additions •without making known to the owner or agent that he would expect pay.” We think that that case is distinguishable from the case at bar. In that case the owner’s son was the superintendent of construction and had general authority, as we take it, to bind his principal by verbal contract for extras. While in the case at bar the architect’s authority as agent was limited, he having no authority whatever to bind his principal by a verbal agreement. The architect was the representative of the defendant only to the extent of seeing that the building was constructed according to the contract and the plans and specifications with whatever changes were made by the owner, either by his own additional agreement or in the manner and form permitted by the contract itself.
In Erskine v. Johnson, 23 Neb. 261, it is said: “The architect will be so far the agent of the owner as to bind him for alterations made necessary by the mistake of such architect, in order to complete the building according to contract, as where the plans and specifications called for windows which are too large, or too small, whereby the loss is occasioned to the contractor; therefore as between the contractor and the owner in such case the owner would be liable.” That rule is inapplicable to this case for the reason that the alterations alleged by the plaintiff were not occasioned by any mistake in the
The evidence shows that the defendant did not know that plaintiff expected compensation for the disputed extras, nor that plaintiff claimed that the same were extras until after the completion of the building, nor did the defendant consider that they were extras. On the other hand, it was his understanding that they were included in and made a part of the building as originally planned. We think, however, that there is one exception, an item of $80 for constructing a railing in the office-room. It is apparent that this was a change from the plans and specifications. It is apparent also that the defendant knew of this change and permitted the same to be made. This item must be allowed to the plaintiff. But all the other disputed items fall within the general rule, and as to them the defendant entered into no contract to pay extra therefor, nor did he have any reason whatever to believe that the plaintiff considered that they were extras, and as to these items, aggregating $535.12, the written contract must control.
We come now to the second question presented: Is the defendant herein entitled to recover damages for the delay in the completion of said building? There was a delay of 150 days. The contract itself provided for some contingencies which might operate to delay the completion of the building, such as the act, neglect, or default of the owner, or the architect, or of any other contractor, or delays occasioned by fire, lightning, earthquake, or cyclone or abandonment of work by employees. It was stipulated that the time given for the completion of the building might be extended for a period equal to the time lost by reason of any or all of the causes above mentioned, but that no such allowance of time should be made unless a claim therefor in whiting Avas presented by the plaintiff to the architect. Such contracts
The plaintiff testified that there was a delay of 60 days by reason of the extras; 14 days in cleaning the lot before he could begin the work; 30 days because the iron first prepared was condemned; 10 days by rain, and 14 days because of water rising in the excavation. His evidence in this respect was undisputed. The delay occasioned by thé contracts for extras should not be charged to the plaintiff. We doubt that the contracts for the extras made verbally between the parties were “acts” of the
Some claim is made by the plaintiff for credit for delay for time expended in cleaning the lot, also for delay caused by water rising in the excavation and by rainfall. None of these items are within the issues made by the pleadings and therefore cannot be considered.
The plaintiff is not entitled to delay because a certain lot of- iron first prepared was condemned. This iron was rejected because it did not come up to the standard required in the specifications. It appears that the fault was either with the plaintiff or Avith the parties from Avhom he purchased the iron. At most, under the testimony of the plaintiff himself, he is entitled to 60 days’ delay, and is liable in damages for a delay of ninety days. The evidence here shows that the rental value of the building was equal to the amount stipulated in the contract as liquidated damages. This amount will therefore no more than compensate the defendant for the damages sustained. Lee v. Carroll Normal School Co., 1 Neb. (Unof.) 681.
We find that when the building was completed the plaintiff was entitled to credit for the contract price, $18,321, and for extras, $1,243.72, and he was chargeable with cash paid upon the contract, $14,385.15, with items allowed by the trial court upon defendant’s counterclaim, $174.10, and with damages occasioned by delay, $900, leaving a balance due to him at that time, $4,105.40. This, with interest to October 1, amounts to $4,556.50.
We therefore recommend that the judgment of the district court be reversed and that this cause be remanded, with instructions to the lower court to enter a judgment in favor of the defendant and against the plaintiff for the sum of $2,266.51, as of date October 1, 1906.
By the Court: For the reasons given in the foregoing opinion, the judgment of the lower court is reversed and this cause is remanded, with instructions to the lower court to enter a judgment in favor of the defendant and against the plaintiff for the sum of $2,266.51, as of date October 1, 1906.
Reversed.