Bice v. Marquette Opera House Bldg. Co.
| Decision Date | 01 June 1893 |
| Citation | 96 Mich. 24,55 N.W. 382 |
| Court | Michigan Supreme Court |
| Parties | BICE et al. v. MARQUETTE OPERA-HOUSE BLDG. CO. |
Error to circuit court, Marquette county; John W. Stone, Judge.
Action by Sampson Bice, Joseph H. Bice, and Clarence E. Bice against the Marquette Opera-House Building Company to recover the value of certain building material. There was a judgment for plaintiffs, and defendant brings error. Judgment affirmed.
Clark & Pearl, for appellant.
Ball & Hanscom and Egbert J. Mapes, for appellees.
On August 4, 1890, the defendant company entered into a contract with Wilson & Moore by which they were to erect for defendant an opera-house building for the sum of $45,000, to be completed July 1, 1891. The contract provided that should the contractors at any time refuse or neglect to supply sufficient material of the proper quality, or fail in any respect to prosecute their work with promptness and diligence, or fail in the performance of any of the agreements on their part, such failure being certified by the architect, the owners should be at liberty to supply the materials, etc., and deduct the costs of the same from any moneys due or to become due to the contractors. The contract also contained the following provision: "Before each payment, if required, the contractors shall give the architect good and sufficient evidence that the premises are free from all liens and claims chargeable to said contractors; and, further, that if at any time there shall be any lien or claim, for which, if established, the owners of the said premises might be made liable, and which would be chargeable to said contractors, the owners shall have the right to retain, out of any payment then due or thereafter to become due, an amount sufficient to completely indemnify them against such lien or claim, until the same shall be effectually satisfied, discharged, or canceled." Bice Pendill & Co. were merchants doing business at Marquette, and the plaintiffs in this suit are the successors to that firm, and have succeeded to all their rights by assignment. On August 28, 1890, and after the contract above specified had been made between defendant and Wilson & Moore, that firm submitted to Wilson & Moore a proposition to furnish certain materials for the building for the sum of $3,456.45. Their proposition was accepted, and the firm of Bice, Pendill & Co. furnished materials up to March 1, 1891, when they refused to furnish any more material upon the credit of Wilson & Moore unless the estimates for the material should be made directly to them, and the defendant should pay them directly therefor. Mr. Pendill called upon the architect, Mr. Charlton, and stated to him that they declined to furnish more materials unless they could see their way to get their pay. Mr. Charlton, who audited all the bills, advised Pendill that if he would get an order from Wilson & Moore he would have the estimates made direct to the firm of Bice, Pendill & Co. The order was given by Wilson & Moore upon the defendants. This order became lost, and was not produced on the trial; but Mr. Pendill testified that it was an order for the architect to make the monthly estimates for materials furnished by Bice, Pendill & Co. directly to them each month, and to pay to them directly upon such estimates; that he gave this order to Mr. Charlton, the architect, who agreed to make the payments directly to Bice, Pendill & Co. The whole of the materials were thereafter furnished, and on August 1, 1891, the following certificate given:
Mr Charlton testified that he did not remember distinctly about the order, but had a faint recollection that he saw it, or was told the amount. He admits, however, that he certified the bill above set out. This action is brought against the defendant company for the amount of the claim of Bice, Pendill & Co. for such materials. On the trial before a jury the plaintiffs had verdict and judgment for the amount of the claim. The court directed the jury that it was not claimed on the part of the plaintiffs that the defendant company furnished the materials from them, or Bice, Pendill & Co., as the plaintiffs' firm was then known, Substantially, the court advised the jury that if such an arrangement was made with the architect as plaintiffs claimed,...
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