247 F. 625 | 6th Cir. | 1918
By written contract dated May 25, 1910, and completely signed three days later, appellee, whom we shall call plaintiff, agreed to provide materials for and perform the work connected with the fabricating and erecting of the structural steel and iron work, including stairwork, for a reinforced steel factory building of appellant, hereinafter called defendant. At defendant’s instance, the structural steel was to be purchased by plaintiff from the Carnegie
The bill in this cause is hied to enforce a mechanic’s lien for the full amount of the contract price, together with the value of certain extra work done and payments made by plaintiff for defendant's beneut. No question is made of the regularity and effectiveness of the lien proceedings, nor of plaintiff’s light to recover its full claim, except as affected by defendant's asserted claim for damages due to plaintiff’s delay in periorming its work—consisting of increased cost ot concreting and bricking in cold weather, plus rental of the building during the period of delay. Tlie special master to whom the issues were referred found that plaintiff’s erection of the superstructure was actually begun August 9; that the steel was not shipped by the Carnegie Company until 30 to 50 days after the order date (in fact, there was an average interval of 38 clays); lhat the defendant’s engineers held 60 out oi 116 of plaintiff’s drawings from 12 to 31 days after their receipt, and in .several instances from 1 to 19 days even after their approval by the engineers; that the necessary time for approving these, drawings was from 2 to 4 days; that it was impossible to determine the extent to which tlie delays of the engineers and of the Carnegie. Company postponed fabrication, but that by reason of these delays plaint iff was entitled to have tlie date for completion extended a month or more, had it so asked; that the erection proper was practically finished November 9—that is to say, leaving only the “plumbing-up”— and tiiat the plumbing-up was done as fast as needed; that the erection proper was thus practically finished about a mouth later than it should have been, after allowing plaintiff a month’s extra time; and accordingly deducted upwards oi $11,000 from the amount to which plaintiff would otherwise be entitled, and rendered decree in plaintiff’s favor for the balance. The District Judge (the present Mr. Justice Clarke pre
3Turning to the fundamental and meritorious questions on which the decision below was made to rest:
Assuming that the provisions cited control the controversy in the instant case, a presentation of claim for extension and its rejection by the. engineers or arbitrators would bar it (United States v. Gleason, 175 U. S. 588, 605, 20 Sup. Ct. 228, 44 L. Ed. 284); and the fact that the engineers were required to pass upon tiie effect of their own default would not alter the rule (Memphis Trust Co. v. Iron Works [C. C. A. 6] 166 Fed. 398, 405, 93 C. C. A. 162). But plaintiff presented no claim for extension, and the contract does not in terms make application to the engineers a condition precedent to further indulgence.
“The court, with the full concurrence of the defendant, has before it for determination the amount due to the plaintiff or to the defendant.”
Above the first story the building was divided by courts into eight so-called wings. It was arranged that wings 4 and 5 should be first erected, and wings 1 and 8 last; the idea being that the concreting should follow the steel work as rapidly as practicable, the brickwork to follow the concreting. This arrangement aided defendant in hastening final completion; except for it, defendant would have been in default, for its preliminary work (except as needed to meet steel erection in the given wings) was not all finished by the time required by the written contract. The actual erection of the steel work was followed by its bolting and plumbing. The steel work in wings 4 and 5
Its duty so to do is properly conceded. Warren v. Stoddart, 105 U. S. 225, 26 L. Ed. 1117; Lawrence v. Porter (C. C. A. 6) 63 Fed. 62, 11 C. C. A. 27, 26 L. R. A. 167. The burilen of proving that the damages could have been mitigated is on plaintiff. Campfield v. Sauer (C. C. A. 6) 189 Fed. 576, 580, 111 C. C. A. 14, 38 L. R. A. (N. S.) 837. But inferences may be drawn from testimony, regardless of its source.
In reaching the conclusion that defendant did not use due diligence, the master found that defendant might have finished the concreting by December 15 (6 weeks before it was actually completed); that the forms could have been taken down in 5 or 6 days after pouring the concrete; that the brickwork might have been started September 11 (it seems to have been actually stalled October 26); that each wing could have been bricked in 21 days, and the last wing thus finished on January 12; and that while the concrete “was in” on wing 1-8 (the last wing—perhaps meaning a certain floor) on December 3, brickwork was not started “on that floor” until about February 11. If these conclusions are justifiable, die ultimate finding that due diligence was not used should not be disturbed; for there is no claim that defendant needed the building before March 1, and on the basis oí the master’s conclusions it does not necessarily appear that it should not have been avails ble for use by that daté.
Defendant: forcibly challenges each of these subsidiary conclusions, as well as the ultimate conclusion of the master. But we should not be justified in overturning them, unless the intervention of cold weather
We are disposed to agree with defendant that the exceptions to the master’s first report should not have been considered in computing costs, for the reason that they were practically duplicated in the exceptions to the second report; and the order re-referring the cause to the master was made after it came on for hearing upon the exceptions to the first report, and because the court was of opinion that that report was not sufficiently full and detailed to permit a disposition of the exceptions thereto without an original examination by the court of all testimony presented, although the final order shows that the hearing was had upon exceptions to both reports. It may also be that the findings challenged by exceptions 20 and 21 to the supplemental report are of such breadth as to entitle defendant to costs,- and, if so, the same considerations would apply to exception 30, although we are not satisfied that any of the findings or failures to find in the supplemental report which are excepted to are of such controlling character as necessarily to make the master’s ultimate conclusions wrong. We are thus inclined to think a reduction from $705 to $425 on account of exceptions overruled would be equitable, and such modification will he made.
-6. Plaintiff has presented, as against defendant’s right to damages, several objections of a more or less technical nature, which, in view of the conclusions otherwise reached, we find it unnecessary to pass upon.
The decree of the District Court, as modified in paragraph 5 hereof, is affirmed. By reason of such modification, and the fact that appellant has already paid the greater part of the costs of this court, no costs in this couid will be awarded to either party.
. Defendant, at the time, treated the November estimate as an extension of time, and gave notice of willingness to arbitrate. But nothing seems to have been done under the notice, and neither party in this court treats the estimate as an extension, as we think it plainly was not.
No claim is made for additional cost of the first half of the concreting, finished November 22. Defendant practically concedes that, if it could have completed the “follow-up” work by January 1, there would have been no additional cost of construction.