139 Mo. App. 8 | Mo. Ct. App. | 1909
This is a suit for the balance due on a building contract. The contract contained a stipulation that if the building was not completed by the plaintiff on the 15th day of April, he would pay liquidated damages at the rate of one hundred and twenty dollars per day for the delay thereafter. The balance due plaintiff for the work seems to be conceded. The only controversy in the case is in respect of defendant’s right to liquidated damages. The defendant’s answer avers that plaintiff defaulted twelve days in completing the building, and prays for liquidated damages under the contract at the rate of one hundred and twenty dollars per day, the total claim for liquidated damages being $1,440. In reply, plaintiff concedes the stipulation in ,the contract touching liquidated damages, but avers the provision referred to was waived or the time extended because of an alteration or extra work ordered by the defendant in the roof of the building. The circuit court accepted the theory of the plaintiff and denied the defendant’s right of recovery on his counterclaim. Judgment having been given for the plaintiff, the defendant appeals.
It appears from the written contract in evidence that on February 23, 1904, plaintiff agreed and undertook to erect for the defendant a temporary building of considerable proportions immediately adjacent an important entrance to the grounds of the Louisiana Purchase Exposition, according to plans .and specifications therein mentioned. The consideration to be paid therefor was $8,120. It is conceded in the case that the building was to be erected solely for World’s Fair purposes; that is to say, to be rented by the defendant to tenants during the period of the World’s Fair. It was desirably located with respect to the Fair and its rental value was a high prospect. The Louisiana Purchase Exposition or World’s Fair was scheduled to open May 1,1904. In view of this fact, the parties stipulated that unless the building was completed by April 15th, the
As before stated, to relieve himself from his obligation to pay liquidated damages, the plaintiff relied upon the fact that defendant ordered certain extra work in changing the roof of the building which he had contracted to erect. The contract was entered into February 23rd; the building to be completed April 15th'. During the peri.od when the building was under construction, and on March 18th, defendant ordered a change in the roof of the building in this: the contract required the roof to be constructed of corrugated iron, and the defendant desired instead a tile roof. Plaintiff contractor agreed to substitute tile and do the extra work for the additional sum of $200. This was agreed to by the parties and the building constructed accordingly. It appears the change in roofing referred to delayed the contractor in his work several days. The parties, however, made no new stipulation with respect to the time limit in which the building should be completed. An extension of time on account of the change in roofing was neither stipulated nor discussed. The argument
In affirmance of the general doctrine that the contractor is released from his obligation to complete the building within the time specified by an act of the owner which impedes or delays his performance, see the follorving authorities in point: Holme v. Guppy, 3 M. & W. Rep. 389; Thornhill v. Neats, 8 C. B. Rep. 830; Russell v. Viscount La De Bandeira, 13 C. B. Rep. 148; Close v. Clark, 16 Daly’s Rep. (N. Y.) 91; Dannat v. Fuller, 120 N. Y. 554; Eldridge v. Fuhr, 59 Mo. App. 44; Van Buren v. Digges, 52 U. S. 461, 11 How. 461; 30 Am. and Eng. Ency. Law (2 Ed.), 1255, 1256.
The time limit in the contract having been thus removed or waived by the act of the owner, there is .substituted therefor an obligation on the part of the contractor to complete the building, extra work included, within a reasonable time, unless otherwise stipulated in the contract. [Cornish v. Suydam, 99 Ala. 620; Harrison v. Trickett, 57 Ill. App. 515; Bridges v. Hyatt (Sup. Ct.) 2 Abb. Pr. (N. Y.) 449; Greene v. Haines, 1 Hilt (N. Y.) 254; Lloyd on Building (2 Ed.), sec. 39; 30 Am. and Eng. Ency. Law (2 Ed.), 1257, 1258.)
In the cases asserting the doctrine above referred to, the parties wholly failed to provide in the contracts involved for an extension of time and how such extern
In the present instance, the parties contemplated that the prosecution of the work might be delayed by the act, neglect or default of the owner, and thus contemplating, availed themselves of their right of contract in respect of these matters. They stipulated that in event the plaintiff’s work should be delayed from any of the causes mentioned, he might have an extension of time equal to the period of his delay, and pointed out therein the course to be pursued by him in order to obtain the extension contemplated. This the parties had a perfect right to do; and if their contract be plain and unambiguous, it is the duty of the court to sustain and enforce it as written, wholly irrespective as to whether it imposed a weighty burden or a hard bargain on the one or the other. Article seven of the contract is as follows:
“Article VII. Should the contractor be delayed in the prosecution or completion of the work by the act, neglect or default of the owner, of the architect, or of any other contractor employed by the owner, upon the work, by any damage caused by fire,. lightning, earthquake, cyclone or other casualty, for which the contractor is not responsible, then the time herein fixed for the completion of the work shall be extended for a period equivalent to the time lost by reason of any or all the causes aforesaid, which extended period shall be determined and fixed by the architect; but no such allow*15 anee shall be made unless a claim therefor is presented in writing to the architect within forty-eight hours of the occurrence of such delay.”
It is obvious that the provision of the contract above quoted was inserted by the parties in view of the doctrine established by the cases supra, to the effect that upon the contingency, of delay arising from an act or default of the owner, the matter of time is treated as Avaived. To relieve the hardship which may be entailed by an application of the doctrine referred to, the parties stipulated that any extension of time which in probability might become essential as a result of an act of the owner, should be brought forward immediately for his consideration face to face. In the present instance, time was of the very essence of the contract. The building Avas to be temporary in character only and of practically no value unless erected in time to procure tenants for the World’s Fair business. It was therefore paramount that the owner should be apprised of the fact if an extension were to be claimed, or would likely result from any act or default on his part. In such circumstances, had the OAvner known an extension of time would likely occur or a claim therefor be made because of his act, it was within his power to withhold the act or remove the cause Avhicli was likely to induce it. And further, it is important, too, that stale claims for delay should not be presented. With these matters in mind, the parties stipulated touching 'the question. It will be observed the purport of the provision is that the contractor could claim an extension of time for such a period as the extra work caused by the act of the owner, might delay him in the completion of the building. But this is not all; for it appears as a condition precedent to the right of the contractor to have an extension of time, he assumed the obligation to present his claim therefor to the architect in writing within forty-eight hours of the occurrence of such delay. Provisions in building contracts of the character here in
To the end that a trial may be had Avith respect to the number of days’ delay referred to, the judgment will be reversed and the cause remanded, to be proceeded with in accordance with the views expressed in this opinion. It is so ordered.