11 F.2d 589 | 5th Cir. | 1926
This is a suit in equity, by a contractor who furnished and erected the structural steel used in the construction of a phosphate handling plant at Pernandina, Pla., to enforce a statutory lien for a balance due under a contract with the owners of the plant. There was a decree in favor of the contractor, but the amount found to be due it is based upon a price of steel 1% cents per pound less than the price sought to be recovered. The contractor appeals for the purpose of having that part of the claim which was rejected, representing approximately $16,000, established against the owners and included in the decree of foreclosure.
On December 4, 1919, the contractor and the owners entered into a contract whereby the contractor agreed to furnish and erect the structural steel upon a site and foundations to be furnished by the owners on the water front at Pernandina for a phosphate handling plant. The price of the steel was fixed at 6%. cents per pound. On January 13, 1920, the parties entered into a second contract, whereby the contractor agreed to furnish, but not to erect, structural steel for other parts of the plant, including a loading tower and three track hoppers. The price of the steel under this contract was fixed at 8% cents per pound. Under these contracts the owners were to have the foundations ready by March 15, 1920. The contractor agreed to complete the work under the first contract by May 15, and under the second contract by July 1, 1920. Each contract contained the usual arbitration clause. The owners did not furnish the foundations, and no work was done under either of these contracts.
On August 10, 1920, the parties entered into a new contract. The owners agreed in article IV to have the foundations for the storage building ready not later than September 20, and to provide additional foundations in time to allow continuous and complete erection of all steel work covered by the contract by December 1, 1920, and in article V, in the event of the failure of the owners to provide foundations, that the contractor would be allowed an extension of time equivalent to any delay, upon giving notice in writing. The contractor agreed in article VI to assume the risks of delay incident to strikes and transportation difficulties, and to complete the work covered by the contract not later than December 1, 1920, or during such extension of time as might be mutually agreed upon for delays caused by the failure of the owners to have the foundations ready, as provided in article IV. It was finally agreed that, if the contractor should complete the steel work by December 1 or such extension as might be mutually agreed upon, the owners would pay 1% cents per pound on all steel furnished in addition to the prices fixed in the first and second contracts, but that in ease of default in this particular the contractor should only receive the amount specified in the original contracts. There was an additional clause allowing the cost price plus 10 per cent, for the erection of steel under the second contract.
The owners failed utterly to comply with their obligation to have the foundations ready on September 20. On that date the contractor found the tide rising and falling on the site, and notified the owners that it made claim for extension of time until the foundation should be ready. Within a few days a conference was held in Pernandina, and because of lack of foundations it was agreed that the use of a locomotive crane, which the owners had agreed to furnish, should be dispensed with, and that instead the owners should provide a trestle and the contractor substitute a “traveler” for the crane. On September 28 the owners advised the contractor that the trestle would be ready for use “Thursday week,” and that, if the contractor should be delayed by reason of the trestle not being ready, it would be granted an extension of time to complete its contract equivalent to the time of delay.
The contractor accepted the suggested change, but was unable to begin work until October 13. The contractor was again delayed from November 2 to November 9 by a concrete slab, which was so placed as to interfere with'the use of the traveler, and gave notice demanding an extension equivalent to that delay. But the owners refused to agree to any delay whatever. The contractor substantially completed the work under its contract by December 1, 1920. According to a report approved by the engineer of the owners, there remained a few bolts to be put in and several places in the painting “to be touched up.” Everything else was done to make the work complete by December 14, except that, because some of the foundation had not even then been put in, it was a physical impossibility to complete every small detail. But the contractor left the job at the request of the owners, made in order to save the ex
Tbe District Court construed tbe last contract to mean that tbe contractor, unless it could show a strict compliance on its part, was not entitled to recover tbe 1% cents per pound in addition tó tbe contract price fixed in tbe original contracts.
Assuming, but without deciding, that this is tbe correct rule to apply, we are of opinion that nevertheless tbe contractor is entitled upon tbe evidence to recover tbe additional compensation specified in tbe contract of August 10, for the reason that tbe contract was literally performed, except in so far as that was rendered impossible by tbe owners, within tbe time limited by extension of time to which tbe contractor was entitled. We take judicial notice that September 28, 1920, fell on Tuesday. 15 R. C. L. 1100. “Thursday week,” mentioned in tbe owners’ letter of September 28, was October 7. Six days intervened before October 13, when tbe contractor was first able to begin the erection of steel at tbe plant. Tbe contractor bad already claimed an extension which bad been agreed to by the owners, and therefore a delay of six days was “mutually agreed upon.” Extension for delay was demanded by tbe contractor of seven days of lost time, extending from tbe 2d to tbe 9th of November, and the contractor was entitled to it under article V of tbe contract.
It is true that article VI provides that extensions of time for delay in furnishing foundations should be mutually agreed upon, and that article VII has tbe same provision. However, it is to be noted that tbe original contracts provide for arbitration in tbe event tbe parties could not agree, and although arbitration is not provided for in tbe new contract, yet it was supplemental to tbe old contracts. It was physically impossible for tbe contractor to erect steel until tbe foundations were laid. There is nothing in tbe evidence to indicate that tbe contractor would not have completely finished its work by tbe 1st of December if tbe owners bad furnished tbe foundations as they agreed to do. Besides, tbe contractor did not delay, tbe other work which remained to be done in order to complete tbe plant. Tbe owners have therefore secured all the benefits to be derived from tbe completion on time of tbe steel work. They prevented strict performance by tbe contractor, and cannot now take advantage of their own wrong or be beard in a court of equity to say that they arbitrarily refused to grant an extension of time made necessary by their own default. District of Columbia v. Camden Iron Works, 21 S. Ct. 680,181 U. S. 453, 45 L. Ed. 948. Tbe contractor was therefore entitled to an extension of 13 days beyond December 1, 1920, and in that time it complied strictly with its obligations and became entitled to tbe compensation fixed by tbe contract of August 10, 1920.
Tbe decree is reversed, and tbe cause remanded, with directions to include in tbe decree tbe additional amount claimed by appellant.