82 Iowa 266 | Iowa | 1891
I. The questions necessary to be-determined to settle the rights of the parties appear to-
It appears that the church building was constructed of stone, and completed, except that wooden spires were to be erected. The walls of the towers were built of stone up to where the spires were to be placed thereon, and left in that condition until Scott undertook to erect the wooden spires in question. The written contract for the erection of the spires was entered into on the twenty-fourth of May, 1887, by which Scott bound himself to erect two spires upon the church according to plans and specifications made by one Hyde, an architect. The work was to be done in a good and substantial manner, to the satisfaction and under the direction of one Rice, who was a superintendent v of construction. Scott was to perform all the labor, and furnish all the materials, and complete the work on or before September 1, 1887. It was agreed that Leahy was to pay to' Scott the sum of eighteen hundred dollars as final compensation for the building of the spires. Sixty-six per cent, of this sum was to be paid on monthly estimates made by the superintendent, and thirty-three per cent, was to' be ietained by Leahy as security for the faithful performance of the contract by Scott. The work was commenced, and on the ninth day of June, 1887, the sum of two hundred and ninety dollars was paid by Leahy to Scott upon a certificate given by Rice, the superintendent. On the nineteenth day of the same month, when the whole work was somewhat more than half done, the larger of the two spires being then about three-fourths completed, nothing having been done on the smaller one, the spire in, course of construction was blown down by the- wind, and practically destroyed. No injury or damage was done to the building by this disaster. The stone walls mpon which the spire was, erected were left just as they were before the work was undertaken. The upright timbers in the spire were broken, and the whole •structure was a mass of debris upon the ground. Negotiations were had between the parties, looking to a resumption of the work, and a change of the plan of
The testimony of the witnesses relating to the acts and declarations of the parties after the unfinished spire was blown down, and as to whether the disaster was the fault of the plan, or of Scott’s negligence, is quite voluminous. We are not accustomed to set out the testimony of the witnesses upon questions of this kind. It is enough that, we give our conclusions as to the ultimate facts established by the evidence. It appears quite satisfactorily from the evidence that the structure was not blown down because the plans of the architect were defective. On the contrary, the plans were such that if the spire had been completed it would have been sufficiently strong to resist the ordinary wind storms. The spire was destroyed because it was not sufficiently braced and protected against the wind. This was not the fault of the superintendent, nor of the plans and specifications. It was caused by the negligence of Scott in not properly protecting the unfinished framework of the structure by braces, guy-ropes or otherwise. It was Scott’s duty, under the written contract, to complete the spires; and if he met with any mishap by reason of his own negligence, he had no right to demand additional compensation by reason of the loss occasioned thereby; and Leahy did no act by which Scott was prevented from resuming the work, and completing the contract. There is a large amount of evidence upon this question ; it covers all of the negotiations above mentioned as to the change of plans ; but, it is apparent from the testimony that, from first to last, Scott was unwilling to complete the contract with- ' out some compensation for the loss occasioned by the fall of the spire. He did not offer to go on and complete his contract as he made it; and neither Leahy, nor no
These being the material facts as we find them from the evidence, it is very evident that Scott ought not to have any recovery for the work and labor and materials used in the construction of the spire. It is not like •ordinary improvements or additions put upon buildings, such as repairs in re-roofing, plastering, adding porches or the like, and the building and repairs are all destroyed by fire before the repairs are completed. It is true, the ■spires were an addition to the building, and yet they were just as much independent structures as if the • parties had contracted for the construction of a .wooden ■or frame dwelling upon a stone foundation provided by the owner of the land. If, in such case, the contractor should fail to properly brace and stay the frame, and commenced finishing the structure from the top, as was done in the case at bar, and it should be blown down, he would have no right to abandon his contract, and maintain an action against the owner; and it is entirely immaterial when, or in what installments, the work is to be paid for. It seems to us that the principle we have announced is one of the fundamental rules of the law of contracts, and ought not to demand authority for its support; but see Fildew v. Besley, 42 Mich. 100; 3 Amer. & Eng. Enc. Law, 900, 901, and cases cited in notes; Commercial Fire Ins. Co. v. Ins. Co., 81 Ala. 320 ; 42 Alb. Law J. 498.
Counsel for Scott claim that. recovery may be had for the value of the work and labor and materials upon the ground that when a party performs a contract in part he may recover the reasonable value of his work, with the right of the employer to recoup by the amount •of damages sustained by reason of the failure of the plaintiff to fully perform. This has been the law of this state, as announced by this court, for many years. Pixler v. Nichols, 8 Iowa, 106. But the principle has
II. It is further claimed that the subcontractors are entitled to have their claims established as liens
III. It is claimed in behalf of Leahy, on his appeal, that the court should have rendered judgment in his
It does not appear that any cost was made because of the appeal by Leahy, and the costs in this court will be taxed to Scott and the subcontractors. The decree of the district court will be appirmed.