89 Iowa 720 | Iowa | 1892
Lead Opinion
The plaintiff claims that by virtue of a parol contract, made December 14, 1888, with Wick-ham, through Lainson, it furnished materials for the former for the erection of a dwelling house; that in due time it made out and filed with the clerk of the district court of Pottawattamie county a proper statement of the account for a lien, duly verified, and showing a balance due of four hundred and ninety-five dollars and ten cents; that on March 1, 1889, it, in writing, notified Wickham of its claim; that Wickham knew when the contract of the plaintiff was made with Lainson, and that plaintiff was to furnish materials for said house; that, when said contract was made, and the delivery of materials begun thereunder, Wickham owed Lainson more than the balance now due the plaintiff; that Wickham paid large sums to parties who furnished material and labor for said house, and who never filed liens therefor. Ole Rasmussen and John Mysten are also made defendants. The plaintiff asks judgment, and that its lien be established and enforced, and held superior to any liens of the defendants. Rasmussen filed an answer and cross petition, claiming a lien for labor and material furnished by virtue of a verbal contract with Lainson for ninety-six dollars and fifty-one cents; avers that, within thirty days from the time of furnishing the last labor and materials he filed a proper statement of account and affidavit for a lien with the proper officer, and also served a written notice of his claims and of filing his lien upon Wickham. He also asks a foreclosure of his
I. A material part of the contract entered into between defendant O. P. Wickham and the defendant Lainson reads as follows:
‘‘And it is understood * * * that if [Lainson] shall fail to comply with the terms of this contract ' which relates to the time within which said work or ■parts thereof are to be completed [Lainson] shall forfeit ten dollars per diem for each and every day thereafter, until the completion of the work by [Lainson,] subject, however, to discretion of [Wickham], which sum shall be deducted from any money which may be due him; and if that amount be not due, then [Lain-•son] agrees to pay the same.”
The plaintiff’s contention is that the provisions above quoted fix a penalty only,- while the defendant Wickham insists that they should be construed as providing for liquidated damages. There is no fixed and invariable rule applicable to such contracts, and there is great conflict in the authorities relating thereto. In some particulars, however, the law seems to be fairly well settled. Whether the sum mentioned in the contract is to be “considered as a penalty or as liquidated damages is a question of construction, on which the court may be aided by circumstances extraneous to the writing. The subject-matter of the contract, the intention of the parties,” and other facts and circumstances may be considered. Foley v. McKeegan, 4 Iowa, 1; Beard v. Delaney, 35 Iowa, 16; Perkins v. Lyman, 11 Mass. 76; Brewster v. Edgerly, 13 N. H. 275; Wolf v. Des Moines & Ft. D. Railway Co., 64 Iowa, 380; McIntire v, Gagley, 37 Iowa, 676. And while the
It will be seen that, guided by the rules above stated, each case must be determined upon its own peculiar facts. In the light of the authorities and of the facts in this case, we think the court below properly held the provisions in the contract under consideration were intended by the parties to be considered and treated as providing for liquidated damages. The damages whiob sight ^nsuefrqm the breach, gf the contract
III. It is 'insisted that Wickham is estopped. We have examined this question, and are unable to find that Wickham did anything which should be held to estop him from claiming damages. The plaintiff furnished the materials for which it seeks to recover after the contractor was in default. In fact, it was about three months after the building was to be completed before the plaintiff furnished its material. The plaintiff must be held to know the terms and conditions of the contract between Wickham and Lainson.
In the view we have taken of this case, we need not consider other questions raised. The judgment of the district court is aeeirmed.
Rehearing
OPINION UPON REHEARING.
On the former submission the judgment of the district court was affirmed. The questions involved being important, and such as may frequently arise, a rehearing was granted, and we have carefully reviewed the case in the light of all the arguments and authorities cited.
Our re-examination of the facts confirms us in the correctness of the conclusion announced on the question of estoppel. The former opinion seems to us to be correct, and it is, therefore, adhered to, and the judgment affirmed.