85 Iowa 437 | Iowa | 1892
In June, 1888, the plaintiffs entered into an agreement with the independent district of Des Moines to furnish all labor and material required for, and to erect and complete, a high school building according to plans and specifications made by architects named, for the sum of fifty-two thousand, four hundred and twenty-five dollars. Soon after that agreement was made the plaintiffs and the defendant, Stearns, entered into an agreement, by virtue of which Stearns agreed to furnish a part of the material and labor required by the agreement with the district. The agreement between the plaintiffs and Stearns was in writing, and, as originally drawn, was dated June 21, 1888, and required Stearns to furnish the material and labor necessary to make and complete the excavation and the stone and brick work, and the iron work pertaining thereto, for the sum of twenty-three thousand, six hundred and fifty dollars. It also contained this provision: “The party of the first part [McNulty & Lenan] shall not be liable for any damages that may occur from delays or other causes on the part of other contractors on said building, but the party of the second part must look to the party causing such damages, if any.” The plaintiffs claim that after the agreement in question was drawn, but before it was signed, it was modified by omitting the cut stone from the material which Stearns was required to furnish, and by reducing the contract price
The defendant, Stearns, contends that the instrument was signed as originally drawn, but that after-wards, and about the second day of July, 1888, it was modified by an oral agreement, which required the plaintiff to provide the cut stone as needed for use; that such stone was not furnished as required; and that Stearns sustained damage, including loss of profits, by reason of the delay, in the sum of nearly six thousand dollars. He further claims that, as this delay was caused by the plaintiffs, the right to recover of them damage therefor was not waived by their agreement.
There is no dispute, as to the fact that the agreement as originally drawn has been modified, but the time and character of the modification are of vital importance to a correct determination of the case. If the claim of the plaintiff- in regard to it is correct, the decree of the district court should be affirmed, but,-if not, it should be reversed. It is not possible to reconcile the evidence in regard to the modification. The testimony of some witnesses who must have known the facts is in direct conflict with that of others who must have been equally well informed. After a careful examination of all the evidence presented we reach the conclusion that it fairly establishes the following facts:
It is insisted, however, that the plaintiffs are responsible for the delay, notwithstanding that provision in the agreement, for the reason that their agreement with Eowatt did not require him to deliver the cut stone by the time it was needed for use. That agreement did not, in terms, require the stone to be delivered as needed, although it provided that it should be fully completed and delivered by the twenty-fifth day of September, 1888. But no question of the proper interpretation of that agreement, or the liability, if any, of Eowatt to Stearns- for delay in furnishing the stone, is before us for our determination. Stearns evidently knew of that agreement; but, whether he did or not, his agreement was broad enough
The decree of the district court is affirmed.