American Contracting Co. v. Norton

• Decision Date: 11 June 1923
• Docket Number: 23457
• Parties: AMERICAN CONTRACTING CO. v. NORTON, HEAD & DENNEEN
• Court: Missouri Supreme Court

253 S.W. 372

AMERICAN CONTRACTING CO. v. NORTON, HEAD & DENNEEN

No. 23457

Supreme Court of Missouri

June 11, 1923

Motion for Rehearing Overruled July 14, 1923.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

Affirmed.

SYLLABUS

Action by the American Contracting Company against Norton, Head & Denneen, a partnership. Judgment for defendants, and plaintiff appeals. Affirmed.

Kinealy & Kinealy, of St. Louis, for appellant.

Bates Williams & Baron, of St. Louis, for respondents.

WHITE, J. All concur.

OPINION

WHITE, J.

The appeal is from a judgment in the circuit court of St. Louis in favor of the defendants, in an action by the American contracting Company to recover compensation for constructing a part of Mill Creek joint district sewer in said city.

The Carter Construction Company, August 15, 1914, entered into a contract with the city of St. Louis to construct the Mill Creek joint district sewer; the company, upon completion of the work, to be paid by tax bills for the work and material. The prices for the materials and for the work and labor in constructing the sewer are set out in detail and classified in the contract. The Carter Construction Company sublet this work to the defendants here, Norton, Head & Denneen a partnership, who also were to be paid in tax bills. Norton, Head & Denneen in turn sublet a part of the work to the plaintiff corporation, the American Contracting Company, to be paid for in cash.

The petition is in two counts. In the first count the American Contracting Company demands compensation in the sum of $ 281,338.71 for the full performance of its contract.

The petition alleges performance of the contract, setting forth in an attached statement the items, and admits payment of 85 per cent., $ 222,809.30, leaving a balance of $ 58,529.41, the amount demanded.

For a second count it alleges that at the special instance and request of defendants plaintiff performed work and furnished materials in addition to what was required in the contract, and that the reasonable value of such extras is $ 115,119.47: that defendant has paid on account of the same $ 69.234.97, and is entitled to another credit for $ 3,399.72, leaving balance due plaintiff $ 42,484.78, the amount demanded in the second count of the petition.

The defendant claims that the plaintiff has been paid in full; that the credits applied on the second count of the petition should be applied on the first count in excess of the amount sued for; that in fact nearly all the items claimed by the plaintiff as extras were in fact not extras, but were matters contemplated by the contract.

There was no dispute that under the contract the plaintiff had performed work and furnished material of the value of $ 281,338.71 charged in the first count, and was entitled to that amount.

The largest item of extras set forth in the second count of the petition relates to steel sheet piling left in the trench, 9,201,603 square feet at 62 cents, $ 57,049.94. The contract provided for the use of steel sheet instead of wood piling when deemed necessary by the city engineer, and plaintiff was to furnish it at 40 cents per square foot. This piling consisted of sheets 35 feet long and 14 inches wide, grooved and fitted into the sides of the trench so as to exclude fine sand and water.

As the work progressed some of this steel sheet piling was "pulled" and used again in the progress of the work. Some of it remained in the trench after the work was completed, and it is for that the defendant claims this extra compensation on the ground that it was not contemplated by the contract that any of it should be left in. About a year after the completion of the sewer, the principal contractor, the Carter Construction Company, obtained permission from the city to "pull" a considerable portion of this steel sheet piling, and pulled it. The controversy as to that will be noticed later in the opinion. Other items claimed as extras will be noticed also in the proper place.

Plaintiff's contract with Norton, Head & Denneen mentioned the contract of Carter Construction Company with the city as the "principal contract"; Norton, Head & Denneen are called the "contractor," and plaintiff the "subcontractor." The plaintiffs contract then provided that--

It would perform and complete the contract in workmanlike and substantial manner "to the satisfaction and approval of the sewer commissioner, as provided in the principal contract hereinafter mentioned, and in conformity in all particulars and respects with, and subject at all times and all respects to each and every of the requirements, conditions, restrictions, limitations and provisions contained in the principal contract hereinafter referred to and which are expressly made a part of this contract, all of the work required by the said principal contract to be performed. * * *"

The contract then proceeded:

"(1) That all work done by the subcontractor pursuant to this contract shall be done by the subcontractor working as a subcontractor under Norton, Head & Denneen, who in turn have a contract from the Carter Construction Company, which last-mentioned company has the, principal contract for the construction of the Mill Creek district joint sewer, by virtue of a certain principal contract in writing between the Carter Construction Company and the city of St. Louis, which said contract bears date of 15th day of August, 1914, and is on file with the city of St. Louis and which contract provides for the construction of the Mill Creek sewer and which said principal contract is by reference made a part of this contract; and that all such work shall be done by the party of the first part in strict conformity to and in strict compliance with the provision of such principal contract.

"(2) Norton, Head & Denneen shall have under this contract the same relative rights, options and privileges as are secured to the said city of St. Louis under said principal contract, and shall have the right to exercise the same towards the subcontractor in the same manner as the said city of St. Louis may under such principal contract exercise the rights and privileges towards the Carter Construction Company; that each and every of the liabilities incurred and obligations assumed or undertaken by the Carter Construction Company under and by virtue of said principal contract covering that portion of the work hereby let, shall in turn devolve and descend upon and be assumed and faithfully discharged by the subcontractor in so far as they arise out of or are connected with the portion of the work herein agreed to be done by the subcontractor, and the subcontractor shall be answerable and responsible to the contractor in all respects and particulars and to the same extent and in the same manner as the Carter Construction Company is to the city of St. Louis under said principal contract, in so far as the said portion of the work is concerned, and the subcontractor hereby assumes and agrees to fully perform and discharge each and every of the aforesaid liabilities and obligations."

In the classification of the items of work and materials, this appears:

"For steel sheet piling for bracing, per square foot, $ .40."

Other important provisions follow:

"(7) During the progress of the work, so long as the subcontractor shall fully comply with the terms of this agreement Norton, Head & Denneen will on or about the 25th day of each calendar month make to the subcontractor an advance payment for and on account of the work done during the last preceding calendar month; the quantity, character and value of such work to be estimated and certified by the sewer commissioner with his written approval subject to the check approval by the engineer of Norton, Head & Denneen; such advance payment to equal 85 per cent, of the value as so estimated, certified and checked. * * *

"(10) It is hereby agreed by the subcontractor that its claim for compensation for work performed and material furnished under this contract shall be limited strictly to the quantities and classifications which shall be fixed by the sewer commissioner and which shall be allowed by the city of St. Louis to the Carter Construction Company."

In the contract of the Carter Construction Company, among the provisions affecting the plaintiffs rights are the following:*

"(13) Steel sheet piling may be used on written orders of the sewer commissioner when lumber bracing is found to be inadequate. The design and weight of steel sheet piling are left to the judgment of the contractor, but they must be of sufficient strength to properly carry on the work. The length of the piling, if ordered driven, is to be thirty-five (35) feet.

"Piles are to be driven until the bottom of the pile has reached a point fifteen (15) feet below the flow line or until the bottom of the pile has reached rock. Steel sheet piling will be estimated and paid for by the square foot at the price bid for 'steel sheet piling for bracing,' which price shall include the cost of furnishing and driving steel sheet piling and all work connected with their use as shown on sheet 'I' of plans. The basis of payment will be the full length of the thirty-five (35) foot pile, unless the top of the rock is so close to the surface of the ground that the top of the pile when driven is above the surface of the ground, in which case penetration only will be paid for.

"The contractor shall provide at his own cost and expense, for the uninterrupted flow of all water courses, sewers and drains encountered during the progress of the work. * * *

"2. The contractor shall commence the work at such points as the sewer commissioner may direct and conform to his direction as to the order of time in which the different parts...