Northwestern Terra Cotta Co. v. Caldwell
Citation | 234 F. 491 |
Decision Date | 19 June 1916 |
Docket Number | 4521. |
Parties | NORTHWESTERN TERRA COTTA CO. v. CALDWELL et al. |
Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
[Copyrighted Material Omitted]
E. H Scott, of Omaha, Neb. (L. F. Crofoot and W. C. Fraser, both of Omaha, Neb., on the brief), for plaintiff in error.
J. A C. Kennedy, of Omaha, Neb. (T. J. Mahoney, of Omaha, Neb., on the brief), for defendants in error.
Before HOOK and SMITH, Circuit Judges, and REED, District Judge.
George W. Caldwell and Lester Drake, as copartners under the name of Caldwell & Drake, entered into a contract for the construction of a new courthouse at Omaha, Neb., and gave a bond to the county dated April 10, 1909, with the Fidelity & Deposit Company of Maryland as surety which provided:
'Now the condition of this obligation is such that if the above bounden Caldwell & Drake shall pay off and discharge all debts due to subcontractors, laborers and mechanics and all debts of every nature due for labor and material used in and about said building in the performance of said contract * * * then the above obligation to be void, otherwise to be and remain in full force and effect.'
The building was to be of stone, with certain terra cotta trimming, and Caldwell & Drake let the contract to furnish the terra cotta to plaintiff for $13,000, and the Fidelity & Deposit Company of Maryland signed as surety a separate bond to the Northwestern Terra Cotta Company for the payment of the amount of said contract by Caldwell & Drake. The contract between the plaintiff and the defendants Caldwell & Drake for the terra cotta work stipulated that the plaintiff should be designated as the contractor, and Caldwell & Drake should be designated as the owners and contained the following provisions:
'Should the owners and contractors fail to agree as to the amount of loss comprehended in this article, the determination of the amount shall be referred to arbitration as provided in article XII of this contract.'
The contract contained no special designation of the amount of terra cotta to be furnished except by reference to the plans and specifications. A controversy arose between Caldwell & Drake and the Northwestern Terra Cotta Company as to just what terra cotta was to be furnished under the contract. The parties agreed that it called for sufficient for the cornice below the coping, and Caldwell & Drake claimed it included the coping and certain lintels upon the tower. The Northwestern Terra Cotta Company claimed that neither the coping nor lintels was embraced in the contract. The property which both sides agreed was covered by the contract was all manufactured and ready to be shipped and cars ordered by October 25, 1910. Caldwell & Drake, after the making of the contract, requested that shipments be made over the Chicago Great Western Railroad. The Northwestern Terra Cotta factory was on the line of the Chicago & Northwestern Railway, and compliance with the request of Caldwell & Drake to ship over the Chicago Great Western caused the slight delay beyond the date mentioned in the contract. The shipments were in five cars, and were actually made, two cars on October 26th, one on October 27th, one on October 29th, and one on November 2d, and all reached Omaha before they were needed in the construction of the building. There was some confusion in the plans and specifications as to what material the coping and lintels were to be of. One of the plans, Exhibit 4, shows the lintels of brick and the coping of stone. Another of the plans, Exhibit 5, does the same. Another plan, Exhibit 6, shows the coping as terra cotta, but indicates nothing as to the lintels. A fourth plan, Exhibit 7, shows the lintels in terra cotta, and shows nothing as to the coping. It appears to be agreed that the question as to the lintels was submitted to the architect as provided in article II of the contract, and he held that they were of terra cotta, but permission was given to use stone, and by agreement of the parties stone was used by Caldwell & Drake. This was done at a cost of $41.06. No question was ever submitted to the architect, as provided in the contract, as to the coping, but he testified:
'I did not make a decision whether or not the coping should be of terra cotta or of stone, but if the...
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