227 Mo. 220 | Mo. | 1910
Plaintiff contracted in writing to build a courthouse for the county of St: Charles for the suin of $37,349; to be paid in instalments. The last instalment was to be $5349. Alleging full performance and claiming the last instalment with certain items of extra work, plaintiff sued in one count on the contract and in another on a quantum meruit for $5541.84. The latter count and the extras were finally abandoned and the suit stood as one for said last contract instalment, viz., $5349. Verdict and judgment for $2019. Plaintiff appeals.
The answer admits the contract, but denies performance, etc., and pleads a provision requiring the work completed by December 31, 1901, and that for a default in that regard plaintiff should pay defendant “as liquidated damages” ten dollars for each and every day from that date until the building was completed; that plaintiff was' given an extension of time, viz., of 26 days from December 31, 1901, to January 26, 1902, but breached the contract in that he did not complete the work.until December 26, 1902, and that the liquidated damages for such failure were $3330;
By reply plaintiff puts a construction on the contract, vis., that the “liquidated damages” were merely a penalty, that the real damages from default in time are susceptible of easy calculation and ascertainment with certainty, etc. It then, in a dozen specifications, makes allegations explaining how time was lost. One was to the effect that 55 days were lost because defendant neglected to give plaintiff possession of the premises and the lines and level of the building on the 1st day of March, 1901, as provided in the sixth clause of the contract (presently to be set forth). The seventh clause of the contract, as will be seen in a little while, provided for an extension of time in certain contingencies by written claim therefor at the time with an award by the superintendent certifying the amount of the additional time, or, on failure, to agree, an arbitration as provided in the third clause of the contract.
.The reply did not plead a claim made for additional time, either oral or in writing, or a waiver of a written claim or of the arbitration clause, or any attempt to arbitrate, or to obtain an allowance from the superintendent, or any fraud, mistake, caprice, or wrongful or arbitrary conduct on the part of the superintendent in that regard. In fact, it says nothing about a claim, award or arbitration. It merely sets forth- that because of certain errors, extra work, changes and alterations. and because of a failure to approve plaintiff’s bond, 289 days were lost, for which plaintiff should be allowed
The contract bore date February 11, 1901. The clauses material here are the third, sixth and seventh.
The third provides for changes, omissions, etc.,
The sixth and seventh follow:
“Sixth: The contractor shall and will proceed with the said work, and every part and detail thereof, in a prompt and diligent manner, and shall and will wholly finish the said work according to' the said drawings and specifications, and this contract, on or before the thirty-first day of December, in the year one thousand nine hundred and one (provided, that possession of the premises be given the contractors, and lines and levels of the building furnished him on or before the first day of March, in the year one thousand nine hundred and one), and in default thereof the contractor shall pay to the owner ten dollars for every day thereafter that the said work shall remain unfinished as and for liquidated damages.
“Seventh: Should the contractor be obstructed or delayed in the prosecution or completion of the work by the neglect, delay or default of any other contractor; or by any alteration which may be required in the said work; or by any damages which may happen thereto by fire, or by the usual action of the elements, or otherwise; or - by the abandonment of the work by the employees through no fault of the contractor, then there shall be an allowance of additional time beyond the date set for the completion of said work; but no such allowance shall be made*227 unless a claim is presented in writing at the time of such obstruction or delay. The superintendent shall award and certify the amount of additional time to be allowed; in which case the contractor shall be released from the payment of the stipulated damages for the additional time so certified andl no more. The contractor may appeal from such award to arbitrators, constituted as provided in article 3 of this contract.”
Mr. Legg was architect and superintendent of the building. On behalf of plaintiff there was some evidence tending to show that the lines and level to be given by defendant (see the sixth clause of the contract supra) were not given until sometime in April, 1901, instead of before March 1st, as stipulated. Contra, defendant’s, testimony tended to show they were given strictly in accordance with the sixth clause, i. e., before March 1, 1901. That issue was well put to the jury and found against plaintiff.
During a long running colloquy between court and counsel upon the legal effect of said clause seven, it was suggested by the court that plaintiff would be allowed to prove any delay caused by any action of superintendent Legg outside of the terms of the contract, the court saying, inter alia, “Now if there are other delays, resulting from any affirmative interference on the part of the owner or on the part of the superintendent, who under the terms of this contract represents the owner, delays that do not fall within the terms of this section (clause 7) bufare caused in other ways and for other reasons, then the contract would simply be silent in that regard, and the contractor would be entitled to show those delays, I think, under the general provisions of common law, that where there is a contract to do a certain thing within a certain time that contract would always be construed with reference to his course of operation being uninterrupted by the other party.” • Plaintiff did not accept the offer made by the court to show any de
There was testimony that no additional time was asked for or agreed to during the entire construction of the building except that admitted in the answer, to-wit, from December 31, 1901, to January 26, 1902.
It was shown that all the contract payments as well as payments for extra work were made except the last instalment.
It was further shown that a Mr. Shantz represented plaintiff as agent in transacting the business with the county court of St. Charles county. On February 9, 1903, Shantz demanded of the county court plaintiff’s last instalment. The county court deducted ten dollar's for each day plaintiff failed to perform his contract after the first extension of time (this, on the strength of a report made by its superintendent), drew a warrant in due form of law for $2019, the balance, and tendered it to Shantz, the only objection from him being said deduction. No objection was made to the tender of a warrant instead of actual cash. Shantz took time to telephone his principal and then on his
Plaintiff was allowed to show that the old courthouse, except rooms occupied by two of the county officers, was left standing during the construction of the new one and was occupied by the courts and county officers of St. Charles county. He then undertook to show the rents paid for the use of two offices for those officers whose rooms were demolished — this on the theory that the contract damages were not liquidated, but were a penalty, and that the measure of defendant’s damages would be outlay in rents. The evidence was rejected, the court taking the view that the damages were liquidated by the contract. After the new courthouse was completed the old one stood idle for awhile and was then razed. .
The contract does not contemplate that plaintiff shall furnish the inside furnishings of the building, furnace, stair, furniture, plumbing, etc., but only contemplated that he should do and furnish the excavating, concrete, rubble, range and ashler, cut stone, brick, terra cotta, window frames, structural iron and wood work, ceiling joists and all woodwork above same, roofing sheet material work and everything necessary to construct the walls, cornices, gutters, conductors and roofs of building, dome and porches of the St. Charles •.county courthouse, furnishing the labor and material, scaffolding, implements and cartage necessary for the due performance of the work in accordance with drawings and specifications.
Plaintiff’s instructions were drawn on the theory that the contract provided for a penalty and not for
The court then gave, over plaintiff’s objections, instructions on the contrary theory, also' on the question of tender favorable to defendant’s theory.
On the foregoing record plaintiff assigns error, in substance, as follows: First, in excluding testimony tending to prove that defendant waived the provisions of the contract relating to an extension of time on account of alterations, obstructions and interferences with the work; second, in holding that the county warrant read in evidence was a legal tender; and third, in holding that the ten dollars per day was liquidated damages and not a penalty.
Of these seriatim:
I. The question on the exclusion of testimony splits naturally into two parts. One relates to pleading, the other to the testimony itself.
(a) Plaintiff did not plead a waiver of any contract provision, contra he alleged performance. Counsel argue that under a plea of full performance he was entitled to show a waiver of clause seven of the contract and they rely on certain insurance cases. Those cases hold that under a plea of full performance by plaintiff of policy provisions and a denial of performance by defendant, coupled with specifications of defaults and breaches, the plaintiff may show a waiver without a plea of one. The general rule is that where plaintiff must rely for recovery on performance of the terms of a contract, and performance is denied, he cannot show a waiver unless he pleads it; that the proof offered in such case does not correspond with the allegation, the latter being full performance, the former, non-performance with an excuse. The fairness and! reason of this general rule are obvious and need little reinforcement. It is a doctrine of this court. [Nichols, Shep
In the law of contracts insurance policies are a class unto themselves. They are prepared by the wary, accepted by the unwary. The principles of insurance are abstruse and highly technical in many phases, understood by those who tender the policies, not by those who accept them. The plain indemnity features of policies are not infrequently compassed about with rows of impaling provisions, exceptions, provisos and forfeitures intended to defeat liability. But it is not necessary to defend the rule permitting a plaintiff to show waiver in an insurance case under a plea of full performance. Enough that such un
(b) It must also be held there was no proof tendered that, in law, would constitute a waiver of the provisions of the seventh clause of the contract. At the very utmost it merely tended to show a breach of the contract relating to time and various explanations for such breach. It did not touch the point of waiver or involve any element of estoppel. It did not tend to show that plaintiff made any demand of any kind for an allowance of time or any attempt to procure a present allowance from the superintendent, even by word of mouth, let alone by a written claim, or to show that there was any disagreement followed by an arbitration or an attempt at arbitration, nor did it tend to show any arbitrary, unfair, capricious or fraudulent conduct on the part of the superintendent in that behalf; nor did defendant take any position or do anything precluding the necessity for a claim
Attending to the language of the seventh clause of the contract it is formal, explicit and full. It clearly contemplates a claim by plaintiff for an allowance of time, not by way of afterthought, but made at the time. It was to be made to the superintendent and he was to make an award and certificate. It states that in such event “the contractor shall be released from the payment of the stipulated damages for the additional time so certified mid no more.” It next provides for arbitration if the allowance be unsatisfactory to the contractor. These provisions tended to conduct above-board and in the open. They afforded the data upon which the county court could settle and whereby it could show to the people of the county the grounds upon which it paid out the people’s money.
The record shows that at the trial counsel took the position that this provision of the contract was not enforceable since it constituted the superintendent, who was the agent of the defendant, a trier of the fact and a judge on the issue of fact. But we do not understand counsel to now press that view of it. If we are mistaken in this, the position is unsound. Such provisions are common in‘construction contracts and in accordance with trade usage. Consensus facit legem. They are not obnoxious to good morals or the policy of the law and parties sui juris and acting at arms’ length may bind themselves in that way if they choose. [Williams v. Railroad, 112 Mo. 463.] Such provisions are reasonable working ones. Contracting-parties in construction work must have some working-theory to settle disputes in the many details incident to construction, and no good reason can be given why they may not select a person to settle them out of hand and let the work go on. His award is binding unless the product of fraud, mistake or sheer caprice and
The point is ruled against plaintiff.
II. The ruling nisi on the question of tender was well enough. Under our statutory scheme not a dollar can be paid from the treasury of a county on a claim except through a warrant. Such warrants are the only legal vouchers for the payment of public money. Our statutes contemplate that county warrants should be drawn in the name of the person presenting a claim for payment, and once a year county courts are required to make a full showing to the people in this regard. [R. S. 1899, secs. 6790, 6792, 6793, 6796 and post.] These laws must be read into plaintiff’s contract the same as if written in so many words. In this view plaintiff contracted to receive a county warrant. When one was tendered to him the tender was within the terms and purview of the contract. It will not do for plaintiff to say, as he does, that county warrants may be at a discount and therefore may not represent cash. Plaintiff should have looked before he leaped and considered that view when he contracted with the county. He had the option to contract or not. When he did contract he put his neck into the yoke of agreeing to accept the only means of payment provided by the statutes, vis., warrants.
But the ruling may be sustained on another ground. When the tender of the warrant was made, the only objection was the amount, not the character or form of the tender. The objection made at the time became, therefore, the only one available to plaintiff on the form of the tender. Who does not speak when he should may not when he would. “The tender should be in money made lawful by the State in which it is offered. But if it is offered in bank bills which
III. Finally we come to a much vexed question upon which courts have been unable to hold a voice even and harmonious, vis., that of “penalty” as over against “liquidated damages.’’ The court construed
If fraud be once defined by hard-and-fast rules the versatility of men would soon invent schemes quite outside of the definition. Accordingly, courts match their ingenuity against that of fraudfeasors by refusing to define fraud except in generalities. Por like reáson the “no-definition” rule has been applied to penalties and liquidated damages. In Moore v. Platte County, 8 Mo. l. c. 473, Tompkins, J., said, with the concurrence of his learned brethren: “The books furnish no very certain rule, and whether the parties call it a penalty or liquidated damages does not seem to have much influence with the courts in ascertaining the intentions of the parties as expressed in the contract. The courts seem rather to lean against construing agreements so as to compel the parties to pay the sum as stipulated damages, and are rather disposed to regard the sum of money agreed to be paid as a penalty to enforce the performance of the contract.” In Grower v. Saltmarsh, 11 Mo. l. c. 272-3, Napton, J., observes: “ It is not easy to extract from the adjudged cases any general rule by which penalties are to be distinguished from liquidated damages. Judge Cow-en in his note to Spencer v. Tilden, 5 Cow. 144, thinks that no general rule ought to be adopted, at least in relation to the forms of language in which such con
We have quoted thus extensively from the early Missouri fathers because, though old, the principles
In the exposition of this matter it will be found that each case is determined on its own facts; that one controlling factor is to get at the real intendment of the parties as gathered not only from their language but from the subject-matter and the results to be attained; that the courts incline toward a construction in favor of a penalty as against liquidated damages, at least where there is doubt or where a strict construction of the contract language would work absurdity or oppression, for instance, where the damages are so extortionate as to shock a sense of justice, and where the actual damage can be assessed by known rules or with reasonable certainty; that the situation of the parties and the course and usage of business are to have some weight;.and that, where the justice of the case cries out for it, liquidated damages may be considered a penalty and vice versa, the strict language of the contract giving way to the majesty of justice, and liability under the contract being pared down by an inquiry into the actual injury suffered, by interpreting the meaning of the parties to be just rather than unjust. “They mistake,” says Scott, J., with animation in Basye v. Ambrose, supra, “the object and temper of our jurisprudence who, while maintaining that men in making all contracts have a right to stipulate for
Scholars will recall two celebrated old cases showing the stiff aversion of courts to “catching bargains.” .One of them, James v. Morgan, is the “horse shoe” case decided during the times of Sir Matthew Hale (1 Levinz, Rep. 111). Morgan agreed to pay James a barleycorn a nail for a horse, doubling it every nail in the shoes of the horse, thirty-two in all. It was computed that at that price Morgan agreed to pay five hundred quarters of barley. James sued in assumpsit accordingly. Morgan pleaded non-assumpsit and Hyde, Justice, “directed the jury to give the value of the horse in damages, being eight pounds, and,” the report laconically reads, “so they did.” The other is the “grain of rye” case, Thornborough v. Whitacre, 6 Mod. 305. The report runs thus: “Assumpsit. That
We are of tbe opinion that by any recognized test tbe trial court well decided tbe point. Tbe damages were not exorbitant, or disproportioned to tbe amount likely to result.' They were not a large gross sum to be forfeited for a default in a trivial matter. To stipulate for and pay reasonable liquidated damages for tbe.non-completion of an important building is in accordance with trade usage. There is nothing in tbe contract to show that these damages, were a mere security for tbe performance of tbe work as agreed. Tbe language employed is aptly chosen to exclude tbe idea of a mere penalty. Tbe damages resulting from a failure to build a courthouse on time are by no means easy of ascertainment by certain fixed rules. If we should say tbe measure of damages was tbe rental value of a new court bouse for tbe term uncompleted, bow would that be ascertained by certain rules ? Who would rent a court bouse for business ends? If we should say the measure of damages was simply tbe amount of outlay in tbe payment of rent for tbe two rooms demolished, we would exclude all consideration of tbe dangers presumably surrounding tbe old building because not fire-proof, because tbe records of tbe county were presumably subject to loss and deterioration from exposure to thieves, fire, and bad sanitary conditions. Are tbe conveniences of a new, well appointed court bouse to courts, to officers and to tbe public not within tbe purview of contracting
We have ignored an imperfect abstract, and have allowed the case to break on its merits.
The judgment' is affirmed.