Beattie Manufacturing Co. v. Heinz

• Decision Date: 16 October 1906
• Parties: BEATTIE MANUFACTURING COMPANY, Respondent, v. HEINZ et al., Appellants
• Court: Missouri Court of Appeals

97 S.W. 188

120 Mo.App. 465

BEATTIE MANUFACTURING COMPANY, Respondent, v. HEINZ et al., Appellants

Court of Appeals of Missouri, St. Louis

October 16, 1906

Appeal from St. Louis City Circuit Court.--Hon. Daniel G. Taylor Judge.

AFFIRMED.

STATEMENT.--On February 2, 1904, these parties entered into a written contract by which the defendant, a partnership, engaged the plaintiff, a corporation, to construct for defendant a booth or pavilion in the Agricultural Building of the Louisiana Purchase Exposition in the city of St. Louis. The booth was to be constructed according to plans, specifications and detail drawings to be prepared by Vrydaugh & Wolf Architects; said plans, drawings and specifications being made a part of the contract and a copy of the specifications attached to it. It was further provided that the work should be done in accordance with the regulations of the Exposition authorities. The booth was to be finished on or before April 16, 1904, and in default of its completion defendants were to be entitled to one hundred dollars per day liquidated damages until it was completed. The total contract price was $ 8,500. The booth was not finished until May 25th and by reason of the delay defendants claimed a deduction from the agreed price of $ 3,300, which plaintiff refused to concede. On June 30, defendants wrote a letter to plaintiff expressing regret that the booth was not completed by the stipulated date and inclosing a check for $ 950, the balance defendants asserted was due plaintiff under the contract. A voucher accompanied the check showing the latter was tendered in full payment of the balance of plaintiff's demand. This conclusion was reached in the following manner; from the total contract price of $ 8,500 defendants deducted $ 3,300 for liquidated damages due to delay, leaving $ 5,200; from which certain payments made during the progress of the work amounting to $ 4,250, were deducted, leaving a balance of $ 950, the amount of the check. On receipt of this check plaintiff wrote a letter acknowledging its receipt, but refusing to accept it in full payment of the demand, saying it would be held in abeyance awaiting defendants' reply. Some correspondence ensued between the parties in regard to the matter and later one of the defendants came to St. Louis to attempt to settle with the plaintiff. No definite arrangement resulted from the interview between the parties, but the evidence goes to show an additional sum over and above the $ 950 for which plaintiff held defendants' check, was offered by defendants in settlement. The negotiation was ended by the statement of the defendant who came to St. Louis that the matter would be taken up when Mr. Heinz returned from Europe. Further correspondence in regard to the dispute followed through the month of September, 1904, but no settlement was reached and this action was brought for the balance plaintiff asserts is due on the original contract price; that is to say, $ 3,300, and $ 321 for extra work said to have been done on the booth.

The defenses to the action are the delay in the completion of the booth, which is alleged to entitle defendants to a deduction of $ 3,300 from the contract price, and an accord and satisfaction by virtue of plaintiff's having retained and deposited defendants' check for $ 950 sent to it to pay the balance defendants contended was due. It should be stated that this check was held by plaintiff for several weeks and not cashed or deposited until after the interview with the defendant who came to St. Louis. Plaintiff's contention in regard to the delay in putting in the booth is that it was occasioned by defendants and hence the latter are not entitled to damages on account of it. The pavilion to be erected was of intricate and elegant workmanship, adorned with carved woods, marble and brass, with arches, columns curved stairs, pagodas and other parts of such form and details that they had to be manufactured in plaintiff's factory and were made there preparatory to being put in position in the Agricultural Building. The contract designated the portion of the floor on which the booth was to be built, to-wit; the south half of section 108. When plaintiff attempted to erect the booth on that space after its different parts had been constructed in the factory, the floor of the building was found to have a fall of seven inches instead of being level, and there is evidence to prove that this slope in the floor made it necessary to reconstruct many parts of the booth and, in fact, occasioned most of the delay in finishing it; as the regulations of the Exposition Company forbade plaintiff to erect a level platform over the uneven space the booth was to occupy. The remainder of the delay was due to mistakes in the plans and specifications respecting the second story and the dome. Defendants contend that it was the duty of plaintiff to ascertain the condition of the floor before the parts of the booth were constructed and that it was remiss in not doing so; hence was liable for the delay and not entitled to recover for the extra work done because of the pitch of the floor. Plaintiff, on the contrary, contends that as the plans and specifications prepared by defendants' architects showed a level floor it had the right to take for granted that the designated space where the booth was to be erected was level and prepare the parts of the booth on that assumption. As to the defense of accord and satisfaction, the evidence of plaintiff is that it held defendants' check for several weeks after notifying them that it would not be accepted in full payment and only cashed it subsequent to an offer to pay a larger amount in settlement. Further, that defendants never regarded nor treated the cashing of the check by plaintiff as an acceptance of its offer of $ 950, but looked on the check as but a partial payment on plaintiff's demand and thereafter negotiated regarding the balance claimed.

The case was tried without a jury, several declarations of law being given at the instance of plaintiff which are matters of exception on this appeal. Judgment was in favor of plaintiff on the first count of its petition for $ 3,300 and interest and on the second count for $ 321 and interest. From this judgment defendants appealed.

The instructions of which defendants complain are these:

"If the court, sitting as a jury, finds from the evidence that the contract under which the work was done required the plaintiff to complete the booth according to the plans specifications and detail drawings furnished by the architects of the defendants, then there was an implied contract that the plans were correct, and the plaintiff was justified in trying to do the work in accordance therewith.

"If the court, sitting as a jury, finds from the evidence that there was a mistake in the level, as shown by the plans prepared by the defendants, and that after plaintiff discovered said mistake, it undertook as speedily as possible to remedy the defect, and that the defendants approved the course taken by the plaintiff in connection therewith, and that plaintiff was thereby delayed in the completion of the work, and that the defendants approved or directed certain changes on the second floor partitions and on the column on the dome, owing to further defects in the plans, and that such other work was done by plaintiff in order to carry out the plans, and that the plaintiff was thereby delayed in the completion of the work and made all reasonable efforts to complete the work without unnecessary delay, that then the plaintiff was excused from the obligation to complete the work by April 15th, and had a reasonable time in which to perform its part of the contract.

"If the court, sitting as a jury, finds from the evidence that the plaintiff did extra work entirely outside of the contract, but necessary to the construction of the booth and which was ordered to be done or accepted after completion by the defendants, and arising from causes for which plaintiff was not responsible, then it is entitled to recover the reasonable value of such extra work.

"The court states the law to be that where one party to a contract demands strict performance as to time by another party, that he must perform on his part all of the conditions which are requisite in order to enable the other party to perform his part, and a failure on the part of the party demanding performance to furnish correct plans in order to enable the other party to complete his contract within the time limited if such failure caused delay in the performance of the contract, operates as a waiver of the time provision.

"If the court finds from the evidence that the plaintiff was delayed in completing its work by April 15, 1904, owing to the fault of the defendants, that in such event the provision allowing damages at the rate of $ 100 per day thereafter, should there be a delay in completing the contract, is as effectually eliminated from the contract as if the parties had cancelled it by express contract. And the plaintiff in such event had a reasonable time for performance, and is only bound for such actual damages as may be proved against it, provided it delayed beyond a reasonable time in the completion of the work.

"If the court, sitting as a jury, finds from the evidence that after the check for $ 950 was sent by Heinz to the Beattie Co., that the Beattie Co. refused to accept or receive it in full satisfaction of its claim and so notified the defendants, and also that it would hold the check in abeyance, and that thereafter the defendants notified plaintiff that one of the defendants would take up with plaintiff the matter of settlement, and that defendant R. G Evans came to St. Louis for the express purpose of settling the claim...