Brennan v. Clark
| Decision Date | 29 April 1890 |
| Citation | 45 N.W. 472,29 Neb. 385 |
| Parties | BRENNAN ET AL. v. CLARK. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. In construing a contract to determine whether or not a provision therein for the payment of a stipulated sum, in case of default by one of the parties, is to be considered as a penalty or liquidated damages, the court will consider the subject-matter, the language employed, and the intention of the parties. If the construction is doubtful, the agreement will be considered a penalty merely. If damages result from the performance or omission of acts which are certain or can be ascertained by evidence, the stipulated sum is considered as a penalty; but, where the acts or omissions occasioning damages are not susceptible of measurement by a pecuniary standard, the sum stipulated ordinarily will be regarded as liquidated damages.
2. A provision in a building contract that the contractor shall pay a stipulated sum per day after a certain date, if he fail to complete the building at the time designated, is in the nature of a penalty, and not liquidated damages.
3. The sureties on the bond of a contractor for the erection of a building are bound only in the manner and to the extent provided in the obligation; and where the contract provided that the work was to be done under the supervision of an architect named, and payments to be made only on estimates made by him from time to time as the work progressed, and certain payments were made without such supervision and estimates, held, that the sureties were entitled to a deduction for any injury they may have sustained thereby.
Error to district court, Douglas county; DOANE, Judge.
F. A. Brogan, M. V. Gannon, and J. L. Kennedy, for plaintiffs in error.
G. W. Ambrose and V. O. Strickler, for defendant in error.
This action was brought in the district court of Douglas county by the defendant in error against the plaintiffs in error, as sureties on a bond given by J. N. Bennett and Charles R. Boehme, as contractors for the erection of certain buildings in the city of Omaha. On the trial of the cause, the jury returned a verdict in favor of the defendant in error for the sum of $3,141, upon which judgment was rendered. It is alleged in the petition that, in the fall of 1886, Bennett & Boehme entered into a contract with Clark to erect for him “a block of four brick buildings on land owned by him, known as part of sublot eleven, in block 3, Capiral addition to Omaha,” and for that purpose employed one Sidney Smith as an architect to prepare the necessary plans and specifications for the erection of said buildings. That
The defects alleged in the petition are as follows:
And the liens claimed against the buildings are alleged to be:
+-----------------------------+
¦To one McGreer ¦$ 205 40 ¦
+-------------------+---------¦
¦To one Elliot ¦883 10 ¦
+-------------------+---------¦
¦James Morton & Son ¦392 18 ¦
+-------------------+---------¦
¦Newcomb Lumber Co ¦942 99 ¦
+-------------------+---------¦
¦E. R. Benson ¦54 46 ¦
+-------------------+---------¦
¦Ransom & Co ¦956 99 ¦
+-------------------+---------¦
¦Whitman et al ¦115 00 ¦
+-------------------+---------¦
¦Total liens ¦$3,550 12¦
+-----------------------------+
There is also a claim of $900 liquidated damages for a failure to complete the building on May 1, 1887; the allegations being: “That the said Boehme & Bennett entered upon the construction of said block of buildings, and furnished the material therefor, so far as the same has been completed, but the plaintiff says that said buildings have not been completely finished, nor any of them; that many portions of the work, according to the said plans and specifications, have been left undone; that the said Boehme & Bennett abandoned said work, and were notified on the 15th day of August, 1887, that the said buildings were incomplete, and requiring them to finish them ready for occupancy under the aforesaid contract and bond, and that the plaintiff would be compelled to finish the same, and charge the expense thereof towards their contract price, of which notice the said Boehme & Bennett have taken but little notice, if any, and the buildings at this date are still incomplete and unfinished; and that the said block of buildings were not finished and ready for occupation on the 1st day of May, 1887, as by the terms of said contract provided, and such delay was not prevented by accidental fire or by any circumstances over which the parties of second part had or could have had no control, but that on or about the 1st day of August, 1887, the plaintiff was enabled to have the buildings occupied in an incomplete and unfinished condition; whereby, and under the terms of said contract, the said plaintiff has suffered damages in the sum of $900.”
The sureties in their amended answer admit the execution of the bond, but allege, first, a verbal modification of the contract....
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Doll v. Crume
...completing his work under the contract. To sustain this contention, we are cited by counsel for the plaintiffs in error to Brennan v. Clark, 29 Neb. 385, 45 N. W. 472;Dorsey v. McGee, 30 Neb. 657, 46 N. W. 1018; and Bell v. Paul, 35 Neb. 240, 52 N. W. 1110. None of these cases are in point.......
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Stillman v. Wickham
...must end. Bethune v. Dozier, 10 Ga. 235; Simonson v. Grant, 36 Minn. 439 (31 N.W. 861); Paine v. Jones, 76 N.Y. 274; Brennan v. Clark, 29 Neb. 385 (45 N.W. 472); 24 Am. & Eng. Enc. Law, III. The plaintiff urged that by signing orders for the payment of certain work, including extras, the de......
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Stillman v. Wickham
...inquiry must end. Bethune v. Dozier, 10 Ga. 235; Simonson v. Grant, 36 Minn. 439, 31 N. W. 861;Paine v. Jones, 76 N. Y. 274;Brennan v. Clark (Neb.) 45 N. W. 472, 24 Am. & Eng. Enc. Law, 837. 3. The plaintiff urged that, by signing orders for the payment of certain work, including extras, th......