American Bonding & Trust Co. v. Gibson County

• Decision Date: 11 February 1904
• Docket Number: 1,219.
• Citation: 127 F. 671
• Parties: AMERICAN BONDING & TRUST CO. et al. v. GIBSON COUNTY.
• Court: U.S. Court of Appeals — Sixth Circuit

127 F. 671

AMERICAN BONDING & TRUST CO. et al. v. GIBSON COUNTY.

No. 1,219.

United States Court of Appeals, Sixth Circuit.

February 11, 1904

Dufour & Dufour and Deason, Rankin & Elder, for plaintiffs in error.

Taylor & Biggs, Sp'l Hill, and Harwood & Tyree, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS J.

This suit was brought by Gibson county, Tenn., against Hugger &amp Winston, as contractors, and the American Bonding & Trust Company, as surety, upon a contract and bond for the erection of a courthouse. Recovery was sought for the expense incurred by the county over the contract price in completing the courthouse, and damages resulting in the delay, the employment of the contractors having been terminated under a stipulation of the contract. Pleas, both general and special, were filed by each of the defendants. The case was submitted to the jury, and, under instructions of the court, a verdict and judgment for $4,277,00 rendered in favor of the plaintiff. The case is here upon a large number of assignments of error, of which it will be necessary to consider but one.

The contract price for the building was $30,485.00, payable in installments at times to be determined by the progress of the work. The work was done under the supervision of architects and all payments made upon their written certificates. The contract was made April 1, 1899, and the building was to be completed on April 1, 1900, in default of which the contractors were to pay to the county $5 a day for each day the building should remain unfinished. Failure of the contractors to prosecute the work with promptness and diligence was covered by the following clause of the contract:

'Art. V. Should the contractors at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality; or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect or failure being certified by the architects, the owners shall be at liberty, after three days' written notice to the contractors, to provide any such labor or material, and to deduct the cost thereof from any money then due or thereafter to become due to the contractors under this contract; and if the architects shall certify that such refusal, neglect or failure is sufficient ground for such action, the owner shall also be at liberty to terminate the employment of the contractors for the said work and to enter upon the premises and take possession, for the purpose of completing the work comprehended under this contract, of all materials, tools and appliances thereon and to employ any other person or persons to finish the work, and to provide the materials therefor; and in case of such discontinuance of the employment of the contractors he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractors, but if such expense shall exceed such unpaid balance, the contractors shall pay the difference to the owner. The expense incurred by the owner as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default shall be audited and certified by the architects, whose certificate thereof shall be conclusive upon the parties.'

Complaint of the slow and unsatisfactory character of the work was made in May and June, 1900, and on August 2, 1900, the architects (using the language of the above clause) notified the building committee of the county that the contractors were refusing and neglecting to supply a sufficiency of workmen and material, and had failed to prosecute the work with promptness and diligence, and certified that this failure refusal, and neglect was such as to warrant the termination of the employment of the contractors. Accordingly, after proper notice,...