89 Neb. 10 | Neb. | 1911
This is an action- by plaintiffs, as subcontractors, against James Stewart & Company, as principal contractors, and the Gate City Malt Company, the owner, by which a judgment is sought against James Stewart & Company, contractors, and the foreclosure of a mechanic’s lien on lot 6, in block 16, and lots 1, 2 and 3, in block 18, in the city of South Omaha, as against the owner of said property.
The pleadings are of great length and cannot be set out in detail here. It must be sufficient to say that it is alleged in the petition that- the defendants James Stewart & Company ■ entered into a contract with defendant Gate City Malt Company to furnish' the material and construct buildings on the lots described above- in the city of South Omaha, and subsequently, by a contract
The answer of defendants James Stewart & Company is of considerable length. By it the contract with plaintiffs is admitted, and, in substance, it is admitted that plaintiffs furnished material and labor thereunder, but by way of counterclaim it is alleged that plaintiffs so failed to comply with the contract as to result in serious loss and damage to defendants. Among the items presented by defendants are: Balance due on brick furnished to plaintiffs, $113.25; demurrage on cars plaintiffs failed to unload, $238; making connections of water pipes, $65. It is alleged that by the terms of the contract 80 per cent, in value of the labor and material furnished by plaintiffs was to be paid as the work progressed; the remaining 20 per cent, was to be withheld until the work was finished and accepted; that the 20 per cent, is included in plaintiffs’ petition, but that the work has never been accepted; that there is nothing due plaintiffs until such acceptance, and therefore the suit is prematurely brought and cannot be maintained; that owing to the many violations of the provisions of the contract, both in the manner of doing the work and the failure to complete the structure within the time limited by the contract, plaintiffs having thereby failed in its performance, no action can be maintained thereon. The answer of the Gate City Malt Company is practically a general denial of .the averments
Plaintiffs’ reply to the answer of James Stewart & Company is to the effect that they had brick of their own purchase, sufficient to meet all demands as the work progressed, and the purchase of brick by defendants was therefore unnecessary, but to accommodate defendants plaintiffs had used them and allowed defendants the same price for which they had purchased brick for themselves; that defendants had purchased their brick at 50 cents a thousand more than plaintiffs had purchased their own brick, but that they had accepted defendants’ brick at the same price for which they had purchased, to wit, $7 a thousand; that the demurrage charge was occasioned by the unnecessary purchase and shipment of brick in such large quantities by defendants that they could not be unloaded from the cars, the demurrage being caused by the unnecessary act of defendants, and plaintiffs were not liable therefor. It is alleged that the piping for water was done for defendants’ own use and benefit, and not for or at the request of plaintiffs; that immediately upon the completion of the buildings the Gate City Malt Company, defendant, had taken possession thereof and has since occupied the same; that defendants are estopped to object to plaintiffs’ work because all of said work was done under defendants’ immediate supervision and direction. The cause was tried to the court, the result being a general finding in favor of plaintiffs. The amount found due, including interest, was. $7,282.87, and an order of sale was directed to.issue for the sale of the property in case of nonpayment. Defendants James Stewart & Company appeal.
Each party has furnished elaborate, able and extended briefs, and the cause was quite exhaustively argued at the bar of this court. The bill of exceptions is of great length, and consists largely of details which it is impossible for us to follow without extending this opinion
Defendants further contend that the decree of the district court should be reversed “because the contract between the parties provided that the final payment of 20 per cent, (of the contract price) should be made only after the approval and acceptance of the work by the supervising architect.” The contract provides' that the payments for the work are “to be made on or about the 20th of each month at the rate of 80 per cent, of the value of material delivered and in place during the preceding month, ás determined by the contractor or the architect; and the remaining 20 per cent, within 30 days after the completion and acceptance of this work.” It may be noted that the contract does not specify by whom the acceptance of the work is to be made, whether by the architect, the owner, or the contractor. We are inclined to the belief that as between the contractor and the subcontractor (and they are the only parties to this appeal)
The bill of exceptions contains a great number of charges by plaintiffs for extras alleged to have been furnished and extra labor performed by plaintiffs. The contract provides, in substance, that no work done or material furnished by the subcontractor shall be considered as extra or paid for as extra, unless a separate agreement in writing therefor shall have been made'before the commencement of such work' or the furnishing of such material. It is also stipulated therein “that no orders for work supposed to be ‘extra’ shall be given by employees upon the job or recognized as extra by the contractor.” The contractors have their places of business in Chicago, Illinois, and other cities, and were represented in South Omaha upon the construction work by agents known' as superintendents. It is shown by the evidence that many changes and extras were ordered by them, the orders complied with, and the extras in the way of labor and material furnished as required. Of all such extras so provided by plaintiffs we have not observed a single case where the orders were given or the material or labor
In addition to the great number of demands by plaintiffs, the defendants present a number of counter charges for material, damages for failure to comply with the contract, labor furnished plaintiffs, etc. On many, if not all, of these issues the evidence is conflicting and contradictory. Considering the great length of the bill of exceptions and these issues as presented, all of which have been examined and carefully read, the findings of the district court, in so far as they are approved, will not be
It appears from the evidence that defendants furnished to plaintiffs some 223,000 bricks to be used in the construction work. Judging by the correspondence shown in the record, defendants believed plaintiffs were not receiving, of the bricks ordered by them, a sufficient number to push the work as it ought to have been crowded, when, apparently without any request by them, the bricks were purchased by defendants, shipped and delivered to plaintiffs, and used by them. Invoices were furnished plaintiffs by defendants, together with checks payable to the person from whom the purchase had been made, with instructions that if found correct plaintiffs should transmit the checks to the seller, which was done. For those bricks defendants paid $7.50 a' thousand. The bricks which plaintiffs had contracted for were to be furnished them at the rate of $7 a thousand. The evidence is clear that plaintiffs were advised of the price which defendants were paying, and that they refused to allow the 50 cents a thousand above the price they were paying. Had plaintiffs refused to accept and use the bricks furnished by defendants, they could not have been required to pay any portion of the price for which the bricks were purchased by defendants. But having been informed what the cost would be, and still accepting and using them, they ought in all good conscience to have given defendants credit for the price paid, instead of for the price at which they had contracted with those from whom they were purchasing. The difference is 50 cents a thousand or $111.50, for which defendants are entitled to credit. As to other items of counterclaim presented by defendants, we can see no sufficient reason for reversing the findings of the district court, but will not discuss them separately here.
A claim is made against defendants for $300 for the
Much time and attention upon the trial were devoted to a clause in the contract forbidding the erection of a hoist within the building, and which was violated by plaintiffs, and their hoist for lifting material was. placed therein. This seems to have been necessary, owing to the contour and topography of the site upon which the building was erected. However, Ave fail to find any sufficient proof that defendants were in any way injured or damaged thereby, and the subject will not be further noticed.'
As the decree of the district court was for $411.50 more than we find plaintiffs entitled to, the cause will be remanded to that court, with directions to enter a decree in all respects similar to the one heretofore rendered except that the amount thereof shall be for $6,870.87, instead of $7,282.87, the same to bear interest from the
Judgment reduced.