Ark-Mo. Zinc Co. v. Patterson

• Decision Date: 02 July 1906
• Citation: 96 S.W. 170,79 Ark. 506
• Parties: ARK-MO. ZINC COMPANY v. PATTERSON
• Court: Arkansas Supreme Court

96 S.W. 170

79 Ark. 506

ARK-MO. ZINC COMPANY v. PATTERSON

Supreme Court of Arkansas

July 2, 1906

Appeal from Marion Chancery Court; T. H. Humphreys, Chancellor reversed.

STATEMENT BY THE COURT.

The plaintiff, G. M. Patterson, instituted this suit in the chancery court of Marion County against the defendant, Ark-Mo Zinc Company, a New Jersey corporation doing business in this State, to recover the contract price for the erection of a concentrating and ore-dressing plant at the "Climax" zinc mine in Marion County, owned and operated by the defendant, and to enforce a statutory mechanics' lien therefor. An unpaid balance of $ 892.33 is claimed on the original contract price, and the further sum of $ 781.36 for extras, making a total of $ 1,673.69 alleged to be due and unpaid.

The contract between the parties, whereby the plaintiff undertook to construct the plant, contained the following clauses viz.:

"1. The second party shall furnish, build, erect, install complete and place in good running order, satisfactory to first party, the said plant, according to the specifications and blue prints hereto annexed, and by reference thereto herein is made a part hereof, and second party shall furthermore furnish and install all machinery, lumber hardware and other material, together with all labor necessary to complete the said plant.

"2. The same shall be furnished in a good, workmanlike and substantial manner to the satisfaction and under the direction of W. N. Allen, or under such other person as first party shall select for that purpose, to be certified under the hand of the said W. N. Allen or by first party.

"6. Should any dispute arise concerning the true construction or meaning of the specifications, the same shall be decided by the said W. N. Allen, or such other person appointed by him or by first party in good standing, and his decision shall be final and conclusive.

"8. After completion of the plant and upon due notice by second party to first party or to said W. N. Allen, given personally or by registered letter at least ten days prior to a day to be therein fixed, the said plant shall be tested by being operated continuously for a period of five days under the control and direction of the said W. N. Allen, or any person appointed by first party as hereinbefore provided. The test must show to the satisfaction of the said W. N. Allen, or such other person appointed by the first party, that the plant as a whole has been built in conformity to this agreement, and that it will crush and properly clean in ten hours or less at least fifty tons of ore from the said mine or ore of a similar character to that of said mine.

"10. First party shall pay to second party, as the sealing and delivery of this contract and the bond hereto attached, $ 500. First party shall pay second party $ 2,000 when said plant, including the machinery, lumber, hardware and all parts thereof, are delivered on the property of the Ark-Mo Zinc Company at said Climax mine. $ 599.53 shall be paid when the plant is completed and accepted and turned over to the owners in good condition, and the balance, $ 1,000, after the said last payment and acceptance."

The specifications attached to the contract set forth in detail the kind of machinery to be furnished and the manner in which the plant should be constructed, and concluded with the following provisions, viz.:

"Contractor to furnish all machinery, lumber, labor and other material necessary to complete said mill. The contractor will be and is bound to give an approved bond in the sum of the total contract price of the mill, to secure the faithful performance of his part of the contract. Contractor to start up mill and run same for a period of five days to demonstrate the correctness of his work. Owners of mill to furnish crusher, feeders and engineer. These specifications and two blue print drawings comprise a complete mill, tried and running, whether every item is specified or whether shown in blue-print details. The said concentrating and ore-dressing plant is to be finished on or before the 15th day of July, 1902, or as early as possible for the contractor to do so, it being understood that the day fixed is a later day than the one estimated upon during preliminary negotiations. If the said plant is not finished at the time mentioned, then the said contractor shall pay as liquidated damages the sum of $ 7.50 per day for each day's delay after said day."

The defendant filed its answer denying that the plaintiff had complied with the contract by constructing the plant in accordance with the terms of the contract and specifications, alleging that the plant had not come up to the test provided in the contract; that it was so defective as to be practically of no use, and was not satisfactory to said W. N. Allen or defendant, and had been rejected, and that defendant had paid to the plaintiff the sum of $ 3,207.20 on said contract price. The answer was made a cross-complaint against the plaintiff and the sureties on his bond, with prayer for recovery of said sum advanced and also damages on account of the plaintiffs' alleged failure to comply with the contract. Alleged defects in the plant are set forth in detail in the answer as follows:

'The boiler is improperly and defectively set, the inside walls in the fire box having fallen in, and being in a dangerous condition; that all steam connections are faulty and so arranged that, when it became necessary to close down any one department of the mill, all must be closed; the engine is defective in its connections, and did not work at all satisfactorily, and had a decided pound in the cylinder, and would wear it out in a very short time. The follower catches and hammers at each revolution. The rolls are not set on a solid foundation, and are insecure and dangerous. The crusher is not set on a solid foundation or anchored, and is not true upon its base, and is insecure and dangerous. The screen is hung insecurely, and is dangerous. The main line shaft is not property set, and is unable to stand the strain that operation would cause. The elevator is improperly constructed, and permits a constant waste of ore. The ore bin is improperly constructed, and would not sustain the weight it was intended to sustain, and is broken. The hoister house is improperly and insecurely constructed; the vibrations, when the hoister is in operation, being so great that it renders it difficult for the hoisterman to perform his duties. The steam connections on the hoister are so leaky that it is impossible to operate it on account of escaping steam, without wrapping the joints with cloth; and the building is improperly and defectively constructed. That it will not crush and properly clean in ten hours or less at least 50 tons of ore from appellant's mine, or ore of a similar character to that of said mine, and that there are many other defects in the construction of said plant. That, after a test of said plant by appellee and said plant being defective and not according to contract, the same was rejected, and was not satisfactory to said W. N. Allen or appellant, and, although promptly notified of such defects the appellee refused to remedy same, and said plant was closed and tendered to appellee, and appellant still tenders same to them."

The chancellor made the following findings of the facts, viz.:

"W N. Allen, the director of the work, was on the ground about three days out of the week while the work was progressing, according to his own evidence, and more of the time according to the weight of evidence. The machinery was of the kind and quality provided for in the contract. There were some defects in the construction of the building and installation of the machinery, and some changes and modifications in the plans and specifications, yet upon the whole there was a substantial compliance with the contract on the part of the contractor. The changes and modifications of the plans and specifications consisted in roofing the building shingle fashion instead of being batted a slight change in the location, a decrease in the size of the jig room of four feet and two inches in the fifth cell of the jig. Any of these changes could be observed by a casual observer. The defects consisted of the floor lacking sufficient bracing, thickness of the floor and failure to bat the hoister house; the failure to put a mudsill lengthwise under the support to the ore room; the failure to line the mouth of the elevator and three pipes with iron; the failure to place a fourth girder, box and fixtures in the thirteen-foot space to support the main shaft; the failure to exactly plumb the piles in the piling foundation under the jig room; the failure to place sufficient piling under the west wall of the boiler and engine room, and to set the crusher on a solid foundation, and to sufficiently line the fire box under the boiler. None of these defects were intentional or willful on the part of the contractor, and most of them could be seen and detected during the construction of the plant by a person competent to direct the construction of a mill and receive same. The jig was constructed in the manner provided in the contract, except the fifth cell, which was a little smaller, but the fifth cell neither takes from nor adds to the capacity of the mill. I find from the whole evidence that it was the duty of respondent to furnish water necessary to operate the mills, which it has never done; that both parties are in possession of the mill; that the capacity of a mill is largely due to the number of jigs and water supply. This contract provides for only one jig. The mill was not completed for thirty days after the time provided by the contract. After the mill was completed, respondent expended $ 700 or...