Bartels v. School District No. 118 of McPherson County

• Decision Date: 12 April 1913
• Docket Number: 17,917
• Citation: 131 P. 579,89 Kan. 233
• Parties: H. BARTELS, Appellee, v. SCHOOL DISTRICT NO. 118 of McPherson County et al. (C. W. DELANO et al. Appellants)
• Court: Kansas Supreme Court

131 P. 579

89 Kan. 233

H. BARTELS, Appellee, v. SCHOOL DISTRICT NO. 118 of McPherson County et al. (C. W. DELANO et al. Appellants)

No. 17,917

Supreme Court of Kansas

April 12, 1913

Decided January, 1913.

Appeal from McPherson district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

BUILDING CONTRACT--Extras--Extra Compensation--Findings of Court. In a controversy as to whether parts of a building were provided for in the building contract or were extras it appeared that the provisions of the contract respecting them were obscure and conflicting, and there was oral and conflicting testimony as to the interpretation of the contract by the parties and also as to what was done under it, and hence the findings of the trial court on this issue, which are supported by some substantial testimony, can not be disturbed on appeal although the supreme court might have reached a different conclusion in an original investigation based on the same testimony.

Frank O. Johnson, of McPherson, and J. S. Simmons, of Hutchinson, for the appellants.

F. P. Hettinger, and James Hettinger, both of Hutchinson, for the appellee.

OPINION

JOHNSTON, C. J.:

This action was brought by H. Bartels to recover a judgment for material furnished to C. W. DeLano, as contractor, to be used in the erection of a six-room schoolhouse for school district No. 118 in McPherson county, and to enforce a mechanic's lien therefor. The United States Fidelity and Guaranty Company, of Baltimore, which gave a bond for the faithful performance of the contract by DeLano, was made a party. Other parties came in and claimed liens for labor and material, but the rulings and decisions on these claims are not in controversy now. DeLano failed to finish the building in accordance with his contract, and the school district, which did complete the building, asked damages for the failure of DeLano to furnish labor and material in accordance with his contract, and also for the penalty specified in the contract for failure to complete it, to wit: $ 5 a day after September 10, 1909, until October 1, 1909, and $ 10 a day after October 1, 1909, until the building was completed, and this was never done by him. The principal controversy between the parties grew out of the claims of DeLano for extra compensation for work and labor done upon the building and which, it is claimed, were not included in the contract. The court found that he was entitled to $ 235.70 for extras provided by him, but found against a number of things furnished and done by him which, it is claimed, were outside of the contract. Of the claims not allowed there are but two about which appellants now complain. One is a claim for $ 1390 for vent flues and stacks, and the other is $ 265 for gables on the building. In their appeal DeLano and the guaranty company insist that the evidence does not support the findings and judgment of the court. In the principal or general contract, which was executed on May 1, 1909, DeLano was to provide all the material and furnish all the labor to erect the schoolhouse, excluding the plant for the heating and ventilation of the building, for which he was to receive $ 9809.50. In the second contract, executed on July 3, 1909, Lewis & Kitchen as well as DeLano agreed to provide for a heating and ventilating plant in accordance with plans and specifications which were provided. They were to furnish all the materials and do all the work in installing a gravity furnace system of heating and ventilation for $ 1400, $ 1200 of which was for heating, and $ 200 of the amount, it was stipulated, was for the brick work of the vent stack and vault for a dry closet system.

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