Alamo Mills Co. v. Hercules Iron Works

• Decision Date: 07 December 1892
• Citation: 22 S.W. 1097
• Parties: ALAMO MILLS CO. v. HERCULES IRON WORKS.
• Court: Texas Court of Appeals

22 S.W. 1097

ALAMO MILLS CO. v. HERCULES IRON WORKS.

Court of Civil Appeals of Texas.

December 7, 1892.

Appeal from district court, Bexar county; G. H. Noonan, Judge.

Action by the Hercules Iron Works against the Alamo Mills Company to recover on a contract. Judgment for plaintiff. Defendant appeals. Reversed.

Barnard & Green and Dennan & Franklin, for appellant. H. P. Draught and S. D. Newton, for appellee.

COLLARD, J.

The Hercules Iron Works, the appellee, brought this suit May 17, 1889, against the Alamo Mills Company, now known as the Crystal Ice Manufacturing Company, and by an amended petition filed January 10, 1890, alleged that on the 26th day of December, 1887, plaintiff entered into an agreement with the defendant for the purpose of erecting an ice plant consisting of two parts, with a daily capacity of 40 tons of clear ice to be produced from condensed steam, one half to be ready by March 1, and the other half to be ready by April 1, 1888, for which said Alamo Mills Company agreed to pay the sum of $13,485, the sum of $6,000 to be paid when the first 20-ton plant had been run 15 days, and demonstrated its ability to perform the work mentioned, and the balance to be paid after a like trial of the second plant of 20 tons, and its satisfactory performance of the work agreed upon for it; that said plant was to be turned over in good order and condition by plaintiff to defendant, and, if anything was necessary to the production of the 40 tons of clear ice per day, it was to be furnished by plaintiff without charge. The petition further avers "that plaintiff complied with its contract in every particular, furnished the machinery of the contract power, with the material as agreed, and of the quality stipulated, and in every particular complied with its contract, with the exception that owing to unforeseen circumstances, and the misconduct of defendant, in refusing to furnish labor and material for making ice when the plant was ready, plaintiff did not have the plants producing ice until a few weeks after the date agreed upon, but plaintiff saved defendant from whatever loss it might have incurred thereby, and now is, and always has been, ready and willing to pay defendant whatever loss it sustained by reason of plaintiff not having the plant in operation on April 1, 1888, if in equity it should, and that when said plant was completed it was turned over to defendant in good order and condition; that defendant continually threw obstacles in the way of plaintiff, in completing said plant, and prevented plaintiff making the tests agreed, and expressed at different times its satisfaction with the plant, and, though often requested, refused," etc., "to plaintiff's damage $13,813.18, and interest from April 1, 1888." The petition further states that after the plant was turned over to defendant, and plaintiff's workmen had returned to their homes, (in Chicago,) defendant "grossly mistreated the plant," and used it so negligently that it was greatly impaired and became worthless, when defendant instructed plaintiff to repair the same, which it did, at an expense and cost for labor and material of the value of $1,404, as shown by itemized account; that, after the contract, defendant instructed plaintiff to make the plant more solid and complete, and that defendant would pay therefor; that plaintiff did, as directed, made such improvements (not required to the production of 40 tons of clear ice per day) of the reasonable value as set out in bill of particulars. The total of both accounts, besides the amount due on the first contract, amounts to $4,262.79. Prayer for judgment for amounts due as alleged. Defendant filed general demurrer, and specially excepted to the sufficiency of the allegations in the petition that defendant obstructed the performance of the contract in time, without stating the facts constituting such obstructions. Defendant also filed a general denial and a number of special answers: First. A plea in reconvention for $80,000, loss of profits, resulting from plaintiff's failure to furnish and construct the ice factory of the capacity agreed on, and from delay in erecting the same; the $80,000 being the loss of profits that would have been made during the season of 1888. Second. Plea in reconvention for $14,000, the alleged rental value of the premises for the year, lost by plaintiff's failure to perform the contract. Third. To recover $7,000, rent of the machinery and premises as they were before plaintiff undertook to put in the new machinery, lost by plaintiff's alleged failure. Fourth. To recover $6,000 paid plaintiff on the contract under the belief that it would be completed, and showing that there was no alternative left but to take charge of the machinery as left by plaintiff, and to utilize it to the best advantage. Fifth. Plea of payment and set-off, $8,502.82. Sixth. To recover loss incurred by defendant in furnishing one Kampmann ice pursuant to a contract made with him by defendant, a special loss to defendant resulting from plaintiff's failure. Other matters of defense were set up. The case was tried by a jury. There were verdict and judgment rendered for the plaintiff for $6,825, with interest from June 30, 1888, at 8 per cent. per annum. Plaintiff entered a remittitur of $2,450, as rent of the plant from March 1st to June 30th; leaving, as stated in the order of remittitur, a judgment against defendant for $4,375, and interest from June 30, 1888, at 8 per cent. per annum. Defendant appealed.

The contract to furnish and construct the plant by plaintiff, and defendant's agreement to pay for it, was in writing and is as follows: "San Antonio, Texas, December 26th, 1887. Agreement made between the Hercules Iron Works of Chicago and the Alamo Mills Company of San Antonio. The Hercules Iron Works hereby agree to furnish an ice-making plant, complete, with a daily capacity of forty tons of ice, the same to include two tanks, with all coils, valves, pumps, distillery apparatus, filter, air pumps, water coolers, charcoal filters, machinery for small water wheel, necessary change in the steam engine, well, condenser house, insulation, and all woodwork connected with the plant, etc., etc. One-half of the plant to be ready March 1st; the second half, by April 1st; the same to be transferred to the Alamo Mills Company, in complete working order, for the sum of thirteen thousand four hundred and eighty-five dollars and the cost of the freezing cans. The plant is to be two complete twenty-ton plants, capable of producing forty tons of clear ice per day. The Alamo Mills Company agree to pay all railroad freight on goods shipped to them by the Hercules Iron Works; to pay for the freezing cans when requested to do so by the Hercules Iron Works; to pay, when the first twenty-ton plant has been run fifteen days, and demonstrates its ability to perform the work mentioned, the sum of six thousand dollars, and to pay the balance, say seven thousand four hundred and eighty-five dollars, after a like trial of the second plant of twenty tons, and its satisfactory performance of the work agreed upon. Further, the Hercules Iron Works hereby guaranties that this plant will not require more than one hundred pounds, say fifty dollars' worth, of ammonia per month, after the first charge has been put in; also, guarantying the material and workmanship of the highest order; also, that forty tons of ice from condensed steam can be made daily with this plant, with an expenditure of McAllister coal, or its equivalent, not exceeding six and a half tons. It is understood that this plant is to be complete in every respect, that it is to be turned over by the Hercules Iron Works in good order and condition, and if anything is necessary to the production of forty tons of clear ice per day by this plant, and has not been mentioned herein, it will be furnished without charge by the Hercules Iron Works. Alamo Mills Co. J. S. Lockwood, President. Hercules Iron Works. Chas. A. McDonald, Prest."

The first error assigned is addressed to the action of the court in overruling defendant's special exceptions to the averment charging defendant with obstructing the completion of the plant, without stating the facts constituting the obstructions. We think that the allegation is too general, and is subject to the special exception. The plaintiff assumed the burden of showing that its admitted delay in completing the plant in the time required by the contract was owing to something done by defendant. The allegation should have stated what was done, — what the obstructions were. Defendant had the right to know, by proper pleading, what acts or omissions it was charged with, that interfered with the plaintiff in carrying out its agreement, so as to prepare such defense as there might be to the charge. Neither the court nor the defendant could know what facts would be relied upon to sustain the charge, or what was intended to be proved to show that defendant had obstructed the completion of the plant in time. Defendant alleged that time was of the essence of the contract. This was reasonable, considering the purpose. Plaintiff, anticipating this, attempted to excuse itself, and make defendant responsible for the failure to comply with the contract in time. It should have stated the facts imposing this responsibility upon defendant, and not the mere conclusion. This rule of pleading is elementary. Thompson v. Munger, 15 Tex. 523; Ellis v. Singletary, 45 Tex. 27; Caldwell v. Haley, 3 Tex. 317; Morrison v. Insurance Co., 69 Tex. 353, 6 S. W. Rep. 605. The allegation that the delay was caused by misconduct of defendant, in refusing to furnish labor and material for making ice, was vague and unsatisfactory, and was only sufficient to admit under it the character of proof indicated, and it would be so limited. But, clearly, if not allowed under this, no proof could be admitted under the allegation to which the exception was taken,...