67 Ind. App. 84 | Ind. Ct. App. | 1918
This appeal is from a judgment in appellees’ favor in an action brought by appellant to recover for labor and materials furnished by it under a contract for the erection of a building on appellees’ real estate, and to foreclose a mechanic’s lien against such real estate. In addition to the amount alleged to be due on the contract price, recovery was also asked for extra labor and material alleged to have been rendered and furnished by appellant. The complaint is in one paragraph, to which there is an answer in general denial and a plea of payment. Appellees also filed a counterclaim for damages resulting from delay in completion of the work and from alleged defective work. No answer was filed to this counterclaim, but by agreement appellant was permitted to introduce evidence to prove any delay in the prosecution of its work caused by appellees or their agents.
It was agreed at the trial that the contract price for work done by appellant was $41,903, and that it was entitled to recover for undisputed extras, $96.42, making a total of $41,999.42; that as against this amount appellee was entitled to credits for amounts paid thereon, aggregating $41,110, leaving an undisputed balance due appellant on the items of indebtedness, alleged in its complaint, of $889.42.
The court found that appellant was entitled to recover said amount on its complaint, and that appellees were entitled to recover on their counterclaim the sum of $889.50, and rendered judgment for appellees against appellant for eight cents and costs. A motion for new trial filed by appellant was overruled, and this ruling is assigned as error. The following grounds of said motion are relied on for reversal: (1) The decision of the court is not sus
However, we think it sufficiently appears from said brief that appellant, by each of said grounds of its motion, has, in effect,-attempted to present the same question, and such question will therefore be considered. American, etc., Tin Plate Co. v. Yonan (1915), 59 Ind. App. 700, 109 N. E. 922; Richey v. Cleveland, etc., R. Co. (1910), 47 Ind. App. 123, 93 N. E. 1022.
The decision and judgment, in so far as it can be said to be based on the items of defective work for which damages are asked in the counterclaim, is not questioned, it being conceded that there is some evidence to support each of such items;, but it is insisted by appellant that the amount found to be due appellees on such counterclaim is in excess of the total amount claimed’therein for defective work.
However, again assuming, without so holding, that said evidence is in fact uncontroverted, and that neither the 'trial court nor this court can disregard it, we are of the opinion that an allowance for delay in the completion of the work was properly included in the decision of the trial court, and hence that such decision is sustained by the evidence, and in accord with the law applicable thereto,
“Art. II. It is understood and agreed * * * that the work included in this contract is to be done under the direction of said architects, and their decision as to the true construction and meaning of the drawings and specifications shall be final.
“Art. VI. The contractor shall complete the several portions, and the whole of the work comprehended in this agreement by and at the time or times hereinafter stated, to wit: The work to be completed on or before the 1st day of November, 1912. A penalty of fifteen * * * dollars per day will be due the owners for each day after November 1st, 1912.
“Art. YII. 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, * * * 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 allowance shall be made unless a claim therefor is presented in writing to the architect within forty-eight hours of the occurrence of such delay.
*91 “Art. XII. In case the owner and contractor fail to agree in relation to matters of payment, allowance or loss referred to in Arts. Ill or VIII * * * or should either of them dissent from the decision of the architect referred to in Art. VII of this contract, which dissent shall have been filed in writing within ten days of the announcement of such decision, then the matter shall be referred to a board of arbitration to consist of one person selected by the owner, and one person selected by the contractor, these two to select a third. The decision of any two * * * shall be final and binding on both parties hereto. ’ ’
Under the terms of this contract, which so far as they are material were almost identical with those of the instant contract, except that the latter contains no express provision that the owners should clear the site, it was held that the contractor, because he made no claim in writing to the architect for additional time alleged to have been necessary by reason of the owner’s failure to remove the buildings from the site by May 15, 1908, could not have an extension of time equivalent to such delay, and was liable for the stipulated damages for such period.
There is abundant authority in other states that, under contracts such as the one here involved, where the contractor has 'not presented his written claim for an extension of time, and such extension has not been granted by the architect, he is not entitled thereto. Chapman Decorative Co. v. Security, etc., Ins. Co. (1906), 149 Fed. 189, 79 C. C. A. 137; Kelly v. Fejervary (1900), (Iowa) 78 N. W. 828; Ward v. Haren (1909), 139 Mo. App. 8, 119 S. W. 446; Hiller v. Daman (1914), 183 Mo. App. 315, 166 S. W. 869; Van Buskirk v. Board, etc., supra; Davis v. LaCrosse Hospital Assn. (1904), 121 Wis. 579, 99 N. W. 351, 1 Ann. Cas. 950; Curry v. Olmstead (1904), 26 R. I. 462, 59 Atl. 392; Lumber Co. v. Friedman (1908), 64 W. Va. 151, 61 S. E. 815; Feeney v. Bardsley (1901), 66 N. J. Law 239, 49 Atl. 443; J. G. Wagner Co. v. Cawker (1902), 112 Wis. 532, 88 N. W. 599; Wait v. Stanton (1912), 104 Ark. 9, 147 S. W. 446; Equitable Real Estate Co. v. National Surety Co. (19.13), 133 La. 448, 63 South. 104; Florida, etc., R. Co. v. Southern Supply Co. (1900), 112 Ga. 1, 37 S. E. 130; Jones v. St. John’s
Appellant contends that it notified the architect of the delay caused by the owner, and also of the delays caused by contractors employed by the owners, and that therefore it is entitled, under its contract, to additional time in which to perform. The record shows a number of letters written by appellant to the architect, in which it complained of the delay- of the owners in clearing the ground, and of delay and interference by contractors over whom it had no control. In some of these letters appellant stated that it would be delayed in a particular portion of the' work by the matters complained of, but in none of them did it claim any extension of time by reason of such mátters, nor was such extension in any way mentioned therein.
Buskirk v. Board, etc., supra, and cases cited; J. G. Wagner Co. v. Cawker, supra, and cases cited.
If it be said that the provision requiring the presentation of a written claim is harsh, the answer is well put in the case of Davis v. LaCrosse Hospital Assn., supra, 587, 588, in which the court said: “Parties have a perfect right to make harsh provisions in their contracts if they see fit. • If they do, courts should not sit to revise them. Their duty is to enforce contracts as they find them, regardless of consequences, when no invalidity is involved nor public policy violated, and no mutual mistake or fraud, nor clear evidence of modification. Stipulations of the kind under consideration are uniformly enforced * * # ? ?
Appellant says that the evidence shows that appellees recovered “penalties” from contractors employed by them to install plumbing, etc., by whom appellant was delayed in completing the work, and that therefore appellees should not be allowed stipulated damages from appellant for the delay so caused. This court cannot say that the judgment appealed from involves such items of allowance, but whether it does or not is immaterial under the stipulations of the contract here involved.
An analysis of the authorities above cited necessitates the conclusion that under such a contract the contractor binds himself absolutely to pay the damages stipulated, fqr any delay in the completion of the work, except such delay as results from the neglect or default mentioned in article VII, supra, of such contract; and the contractor cannot be heard
In the case of J. G. Wagner Co. v. Cawker, supra, 538, the court, in considering a provision in a building contract that written claim must be made for extension of time made necessary by default of others, said: “The importance of this stipulation, as well as its purpose, is manifest. .The very contest that has arisen in this case demonstrates the necessity of some such cautious provision. Disputes frequently arise between different contractors, or the owner and the architect, as to responsibility for delays in the work. Owners are very much in the power of contractors and architects. To avoid the uncertainty of verbal disputes, and to prevent the contractors from making claims for delay after the building has been finished, is clearly the purpose of such provisions. They are for the benefit of both, especially for the owner. The plaintiff knew that it could have no claim for delay for any reason unless it made a claim in writing within twenty-four hours after its occurrence. * * * As we have already said, the purpose of this stipulation was to protect the defendants from stale claims for delays, which might be based upon oral understandings, and made when it might be difficult to prove the facts in relation thereto.” (Italics inserted.)
So, in the instant case, appellant, not having presented his claim in writing for an extension of time, as provided by article VII, supra, cannot now be heard to,say that its delay was caused by the default of the other contractors who, it is claimed, were re
.It is also insisted by .appellant that appellees are not entitled to the stipulated damages provided by the contract, because the evidence shows that they committed a breach of said contract. It is claimed, that under the contract appellees were to pay for 85 per cent, of the amount of labor and material in the building based upon monthly estimates; that the building was completed December 7, 1912; that no payment was made from November 9,1912, to February 13, 1913; that the amount unpaid on December 7 was more than $7,000, no part of which was paid until February 13, at which date only $4,000 was paid.
The architect testified that he issued no final certificate, and the record does not show that his failure to
For the reasons indicated, the judgment below is affirmed.
Note. — Reported in 118 N. E. 966.