Rounds v. Cloverport Foundry & Machine Co.

• Citation: 159 Ky. 414,167 S.W. 384
• Parties: ROUNDS ET AL. v. CLOVERPORT FOUNDRY & MACHINE CO. [d1]
• Decision Date: 05 June 1914
• Court: Court of Appeals of Kentucky

167 S.W. 384

159 Ky. 414

ROUNDS ET AL. v. CLOVERPORT FOUNDRY & MACHINE CO. ^[d1]

Court of Appeals of Kentucky.

June 5, 1914

Appeal from Circuit Court, Breckenridge County.

Action by the Cloverport Foundry & Machine Company against Frank J Rounds and another. From a judgment for plaintiff and dismissing a counterclaim, defendants appeal. Affirmed.

Sweeney Ellis & Sweeney and Floyd J. Laswell, all of Owensboro, for appellants.

Claude Mercer, of Hardinsburg, for appellee.

MILLER J.

This is an appeal by Rounds & Jesse, of Owensboro, from a judgment recovered against them in the Breckenridge circuit court for $5,668.65 by the Cloverport Foundry & Machine Company, for the reconstruction of a towboat formerly known as the "R. D. Kendall," but subsequently rechristened the "Golden Girl." The judgment also dismissed appellants' counterclaim.

Representatives of the parties having reached a verbal agreement, it was reduced to writing, in the shape of the following letter or proposition from the appellee to the appellants, and accepted by the latter:

"Cloverport, Ky. March 23, 1911.

Messrs. Jesse & Rounds, Owensboro, Ky. Gentlemen: On yesterday we mailed you blueprints giving specifications in detail for remodeling and rebuilding and converting the R. D. Kendall into an excursion steamer along the lines suggested and agreed upon between us. To all intents and purposes, these cover the work to be done from the deck up, including the docking of the boat, recaulking, one new stack and lengthening and changing old stack to conform with new one, turning boiler around, taking out engines and putting in the Parker engines and such machine work necessary to be done on same to put in first-class condition, building new wheel, mast poles, raising the bow, new cylinder timbers (any work other than turning around and resetting boiler which may show up to be extra), all necessary ropes for masts and in fact everything necessary to be done to make the job first-class in workmanship, at our estimate of sixteen hundred, ninety and 66/100 dollars (1,690.66). This price includes everything to be done as shown by the blueprints, including the docking and recaulking the hull as above stated, except any extra work we might find in the boiler and any new work we may have to put in the hull which we cannot see or make an estimate on, but all extra work to be done by us to complete the job and put same in good running condition and acceptable to the U.S. Steamboat Inspectors not to cost over two hundred dollars ($200.00); said extra work, if any found, and material used we agree to do and furnish at the actual cost therefor plus ten per cent. All lumber and timbers used in the rebuilding to be of grade No. 1 common. Other material to be first-class and workmanship guaranteed. We have endeavored to make everything as clear to you as is possible to make on paper, having worked very diligently in getting up our plans and specifications, and while they are practically speaking, complete, there is quite a number of little things not shown on them, which we thought entirely unnecessary to spend more time in enumerating them as our proposal carries with it all of these small items to complete the job. In short, we do the work for the sum named $1,690.66 and guarantee that such extra work as may have to be done that we cannot see or figure on shall not cost you exceeding the sum of two hundred dollars ($200.00). We are anxious to get the boat here and get to work on it and shall complete same at the very earliest possible date, which should not be longer than about June 1st, to 10th, barring too much weather unfit for work. Will be glad to answer any further inquiries you may wish to make about the work to be done which we now believe all parties understand fully in a general way.

Thanking you for past favors, we are very truly yours, Cloverport Foundry & Machine Co., by Marion Weatherholt."

Under this contract the boat was taken to Cloverport about April 1st and docked, preparatory to beginning the work. While the boat was on the dock, and before any work had been done, it was examined by a United States steamboat inspector, who expressed the opinion that, while the proposed repairs would be sufficient for the boat to pass the government inspection, they would make the boat seaworthy only for a short time, and that further repairs would be necessary within one or two years thereafter. This information having been communicated to appellant Rounds, he went to Cloverport in May, 1911, and, after examining the boat, Pate, appellee's foreman, says it was agreed between them that repairs additional to those contemplated in the contract of March 23, 1911, should be made, and that it would be necessary to rebuild the boat from the bottom up, to make a good job of it. According to Pate, he and Rounds examined the boat together and agreed that a new hull was necessary; that Rounds asked Pate what this new work would cost, and Pate replied that, while he was unable to say definitely, it looked like it would cost about $3,500, and the best way he could handle the job would be to keep an accurate account of the labor and material and then add a reasonable per cent. for appellee's trouble. Pate says Rounds agreed to the proposition and directed Pate to rush the job as fast as he could. Pate describes the difference between the work contemplated under the contract of March 23, 1911, and as it was finally done under the verbal contract of May, by saying it was changed from a patch job to a new job, and that the appellee did all the work called for under either contract. Pate further testifies that later, during the last week of August, 1911, the contract was again extended by an agreement which required the appellee to take off the old cabin and build a new cabin, with the understanding that appellee was still working under the May contract last above specified as to compensation; and that, while no time was specified for its completion, the work was to be done at the earliest possible date.

The work upon the boat was completed in December, 1911, at a cost, according to the appellee, of $5,668.65. In the meantime the appellants had, on October 2, 1911, paid the appellee $500 upon account; but, they having failed to pay any further sum, the appellee, having theretofore filed a verified statement of lien in the county court clerk's office, filed this action on February 1, 1912, and levied a specific attachment upon the boat to secure its lien, under section 2482 of the Kentucky Statutes. The appellants thereupon released the boat by executing the bond provided by section 2484 of the Kentucky Statutes.

Before answering, the appellants, by a special demurrer, raised the question of the jurisdiction of the Breckenridge circuit court to entertain this action. The objection to the jurisdiction was based upon the contention that the claim sued on, and the lien asserted by the appellee, were of exclusively admiralty cognizance, and that the jurisdiction in all such cases was in the admiralty courts of the United States, and not in the state courts. The plea to the jurisdiction was overruled, whereupon the defendants answered.

The answer and counterclaim is in six paragraphs. After denying the allegations of the petition and the items of the account sued on, and controverting appellee's right to a lien, the fourth paragraph of the answer alleged that the work done by appellee was done under the written contract of March 23, 1911, and not otherwise.

The fifth paragraph alleged that all the work charged for in the account sued on was contracted to be done and performed for the sum of $1,690.66, plus $200 for extra work; and that on October 2, 1911, appellants had paid appellee $500 by their check on the Owensboro Banking Company, which recited on its face that the payment of said $500 was for reconstructing the R. D. Kendall under the contract of March 23, 1911; and that, having accepted said check, the appellee was estopped to claim it had any other or additional contract with the appellants, or that appellants had ever agreed or promised to pay appellee any sum except as specifically stated in the written contract of March 23, 1911.

The sixth paragraph charged that appellee failed to comply with its contract of March 23, 1911; that there was no other contract between the parties; and that the work contracted to be done by appellee and all the work done by it was fully covered by that written contract.

By way of counterclaim, the answer further alleged that the boat as reconstructed was not seaworthy; that appellee did not construct the hurricane deck according to the contract, whereby appellants were damaged in the sum of $500; and that appellee further broke its contract by failing to complete the work within the time prescribed by the contract, whereby appellants had lost various items of business, aggregating $3,234.51.

By an amended answer and counterclaim, appellants set out more in detail, and with greater particularity, the instances wherein appellee had broken and violated its contract, specifying the front stairway, the hull of the boat, the outriggers, the caulking of the hull and the hurricane deck, as some of the instances in which the work had been imperfectly and unskillfully done.

The reply admitted the plaintiff entered into the written contract of March 23, 1911, but denies that all the services rendered by the appellee were performed under that contract and while admitting that the R. D. Kendall was delivered to the appellee under said written contract, to be remodeled and rebuilt according to the terms thereof, the reply further alleged that the said written contract was subsequently abrogated, and that in lieu thereof an additional...