Boston Store v. Schleuter

• Decision Date: 30 November 1908
• Citation: 114 S.W. 242,88 Ark. 213
• Parties: BOSTON STORE v. SCHLEUTER
• Court: Arkansas Supreme Court

114 S.W. 242

88 Ark. 213

BOSTON STORE v. SCHLEUTER

Supreme Court of Arkansas

November 30, 1908

[Copyrighted Material Omitted]

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; reversed.

STATEMENT BY THE COURT.

The appellee sued appellant, alleging: "That on September 15, 1906, the plaintiff and the defendant entered into a contract for certain alterations and additions to be made to the building known as the Boston Store and the building adjoining said Boston Store on the west side thereof situated in the city of Ft. Smith, Arkansas; that "the plaintiff agreed to furnish all materials with the exceptions of the plate glass and iron, which was agreed to be furnished by the Boston Store; and the plaintiff further agreed to do all of said work for the sum of nine hundred and seventeen ($ 917.00) dollars, and the defendant agreed to pay the plaintiff the sum of $ 917, and further to pay for the cost of all additions to said work." That "the plaintiff has constructed and completed the following additions and alterations to the work mentioned in said contract:

Extra windows

$ 45.00

Extra flooring

6.50

Extra work for extending ceiling not provided for in the contract

2.85

Putting in two panels not provided for in the contract

2.00

Making a total of $ 973.35; that the defendant has paid to the plaintiff on said contract the sum of $ 625.00, leaving a balance due from the defendant to plaintiff of $ 348.35." The complaint further alleges that the plaintiff has fully and completely performed the said contract, and has made the alterations and additions to said building, and said work has been approved and accepted by the architect and superintendent, A. Klingensmith, and has also been accepted and approved by the defendant, and defendant refuses to pay said sum." The prayer was for $ 348.35 and interest.

The appellant answered, and, after admitting the contract states: "This defendant denies that plaintiff has fully and completely performed said contract, and has made the alterations and additions to said building and said work at the time and in the manner prescribed by said contract; and denies said work has been approved and accepted by the architect and superintendent, A. Klingensmith; and denies that the same has also been accepted and approved by the defendant; admits that the defendant refused to pay said sum or any other sum whatsoever because the terms and conditions of the aforesaid contract had not been observed and complied with, and because said architect and superintendent has not accepted or approved same. And defendant denies that the plaintiff is entitled to judgment against this defendant for the sum of $ 348.35, or in any other sum or amount whatsoever, with interest and costs.

"The appellant by way of further defense, and for cross complaint alleged: That under and by virtue of the written contract made and entered into by and between the plaintiff and this defendant on September 15, 1906, it is provided in said contract as follows, to-wit: 'The finishing of said works, including all alterations and additions in said contract provided, or hereafter agreed upon, is to be proceeded with with all reasonable dispatch, and the same shall be completed and delivered up to said party of the first part, in perfect good order and condition, fit for use and occupation, on or before eight days after the delivery of the glass on the ground as per specifications; it being agreed that the said party of the second part shall forfeit the sum of twenty-five dollars for every day expiring after that day, before the completion and delivery of said work, as aforesaid, to the said parties of the first part; and this condition not to be made or rendered void by any alteration or additional work being performed, but in such case the time shall be extended as may be necessary for the performance of such alteration or additional work.'

"That the iron work and glass was delivered on the ground as per specifications on October 6, 1906, and that the work of alterations and additions were not completed so that the building could be occupied by the defendant until November 3, 1906; that, under the terms and conditions of the aforesaid contract, after allowing plaintiff eight days after the delivery of the iron and plate glass on the ground, excluding October 6, 1906, and all Sundays, that the work provided for should have been finished and completed on October 16, 1906; that, as provided for in said written contract for such delay, on failing and neglecting to comply with the said contract, the plaintiff has forfeited the sum of $ 25 for each and every day that lapsed after the 16th day of October, 1906, a period of sixteen days, which at $ 25 per day amounts to $ 400." The appellant then alleges other items of damage growing out of the alleged failure of appellee to comply with his contract, which, together with the alleged $ 400, amounts to the sum of $ 615. The prayer of appellant's cross-complaint was that so much of the said sum of $ 615.15 may be set off against any claim which the said plaintiff may have against this defendant as equals the same, and that the said defendant may have judgment against the said plaintiff for the balance. All the material allegations of the cross-complaint were denied.

The appellee read in evidence the contract and the plans and specifications which, by provision of the contract, were made a part thereof. The appellant only contends here that the contract was not performed by appellee within the time specified therein. We will therefore only set forth such portions of the contract as may throw light upon that issue, when taken in connection with the other evidence. The contract contains these provisions:

"The finishing of said works, including all alterations and additions in said contract provided, or hereafter agreed upon, is to be proceeded with with all reasonable dispatch, and the same shall be completed and delivered up to said party of the first part, in perfect good order and condition, fit for use and occupation, on or before the eight days after the delivery of the iron and glass on the ground as per specifications; it being agreed that the said party of the second part shall forfeit the sum of twenty-five dollars for every day expiring after that day before the completion and delivery of said work, as aforesaid, to the said parties of the first part, and this condition not to be made or rendered void by any alteration or additional work being performed, but in such case the time shall be extended as may be necessary for the performance of such alteration or additional work.

"The architects' and superintendents' opinion, certificate, report and decision on all matters to be binding and conclusive on the party of the second part, and in case the said party of the second part should fail or refuse to fulfill the orders of said architects and superintendents, then said architects and superintendents shall have full power and lawful right to terminate forthwith any further work by said party of the second part under this contract, and to have the work done by other parties at the cost of said party of the second part and his sureties.

"The said parties of the first part agree and bind themselves, for and in consideration of the faithful performance of said work as aforesaid, to pay unto the said party of the second part the sum of nine hundred and seventeen dollars ($ 917.00) upon certificate of the architects, issued from time to time in the following manner, to-wit: During the progress of the work, for amounts aggregating eighty-five per cent. of the value of the labor performed and materials furnished, and in the building, forming part of its actual construction; and for the remaining fifteen per cent. upon the completion and delivery of said work by the said party of the second part, and its acceptance by the architects and superintendents."

The plans and specifications among other things provided:

"The work to commence within twenty-four hours after contract was awarded and to be rushed to completion as rapidly as possible with two forces of workmen, one working in day time and one working at night, and finished within eight days after the iron and glass work is on the ground. * * * The contractor in all cases to be held liable for the amount set forth as liquidated damages, unless he shall certify to the architect in writing, within six hours after stopping the work, that it is no longer possible to proceed without certain items of material specified to be furnished by the Boston Store. In case of such certification by the contractor the architect shall at once examine the work, and his decision as to the necessity of stopping the work shall be final and binding on all parties. If the bid for working two shifts of men is accepted, the work to be finished within eight days after all material to be furnished by the Boston Store is on the ground. If the bid for working one shift is accepted, the work shall be finished within twelve days after the material is on the ground."

The appellee testified that he had performed his work according to the contract, and that same had been accepted by the architect in writing. The appellant offered in evidence appellee's bid for this work, which bid was as follows:

"Fort Smith, Ark., September 13, 1906.

"I agree to remodel building for Boston Store according to plans and specifications for the sum of $ 892.

[Signed]

"Fred Schleuter.

"If I work at night, add $ 50."

The court excluded said testimony, for which action by the court the appellant excepted.

Appellant offered in evidence a certificate of the architect, given on completion of the building, showing the status of the account between ap...