Charles v. E. F. Hallack Lumber & Manufacturing Co.

• Decision Date: 16 December 1895
• Citation: 22 Colo. 283,43 P. 548
• Court: Colorado Supreme Court
• Parties: CHARLES v. E. F. HALLACK LUMBER & MANUFACTURING CO. et al.

43 P. 548

22 Colo. 283

CHARLES v. E. F. HALLACK LUMBER & MANUFACTURING CO. et al.

Supreme Court of Colorado

December 16, 1895

Error to district court, Arapahoe county.

Action by the E. F. Hallack Lumber & Manufacturing Company against John Q. Charles and others to enforce a mechanic's lien. From the judgment for plaintiff and for the other defendants defendant Charles brings error. Affirmed.

The plaintiff in error, John Q. Charles, and the defendants in error Thompson & Tomlinson entered into a written contract dated April 10, 1889, for the erection and completion of a six-story building on the corner of Fifteenth and Curtis streets, in the city of Denver, for the sum of $97,525 payable in installments, as the work progressed, less 20 per cent. of the work done and material furnished, which was to be deducted and held back until the building was fully completed, such installments to be paid upon the production of the architect's certificate. The provisions of the contract that are applicable and material to the questions involved in controversy are as follows: 'First. The said parties of the first part covenant, promise, and agree to make, erect, build, and finish, for the said party of the second part, in a good, substantial, and workmanlike manner on lots numbered 1 to 6, inclusive, in block number 106, situated on the corner of Fifteenth and Curtis streets, in said city of Denver, now owned by the said party of the second part, a six-story building, the fronts of said building on Fifteenth and Curtis streets to be of red sandstone of the best quality, taken from Greenlee's quarry, near Manitou, Colorado, and to furnish all the labor and material necessary and required for building, completing, and finishing the same, agreeable to and in strict conformity with the drafts, plans, drawings, explanations, and specifications of the same, prepared by L. Cutshaw, Esq., architect and superintendent of said building, and severally signed by the said parties hereto, and which said plans, drawings, and specifications shall be taken to be, and are hereby made, a part of this contract. That all the work done, and materials furnished in the erection of said building shall be so done and furnished under the supervision of L. Cutshaw, architect and superintendent, as aforesaid, and to his satisfaction, who shall, before the final completion and acceptance of such labor and materials, furnish the said party of the second part with a certificate, in writing, to the purport and effect that such work done and material so furnished are in strict conformity and compliance with said plans, drawings, and specifications, and provisions of this agreement. * * * And when said building shall be fully completed and finished, in accordance with said plans and specifications, and the covenants and stipulations of this agreement, then, in like manner, upon the certificate of said architect to that effect, the said party of the second part shall pay or cause to be paid to the said parties of the first part the remainder of the contract price agreed upon, and hereinbefore stated, for the erection and completion of said building, amounting to the further sum of $33,025; it being the intention of the parties hereto that said payments above mentioned shall, in the aggregate, amount to said sum of $97,525. * * * Third. It is further stipulated, understood, and agreed, by and between the parties here to, that the architect and superintendent above named shall have the right, at his discretion, to reject any work or materials which he may deem not to be in accordance with the plans, drawings, or specifications, or either of them, or the provisions of this contract, or which he may deem unfit or unsuitable for the work required or necessary to be done under this contract. He shall also have power and authority to remove all work or material which he shall deem to be contrary to the terms and conditions hereof, and to have the same replaced by proper work and materials, at the cost and expense of the said parties of the first part, and may deduct the amount thereof from the estimates and payments required to be made thereafter by the said party of the second part. * * * Fifth. That in case the said parties of the first part shall neglect or refuse to supply the necessary workmen or material to properly carry on the work, with a view to complete on or before the time herein agreed, then, in such a case, the said party of the second part shall have power, and is hereby given the right, after twenty-four hours' notice, in writing, shall have been given the parties of the first part of their intention so to do, to furnish the necessary workmen or materials to properly carry on the work, and the expense of all work or materials so procured shall be deducted from the amount herein agreed to be paid to the parties of the first part by the party of the second part. Sixth. That in order to prevent all disputes or disagreements between the parties hereto, in relation to the execution of the work, the quantity or quality of the materials, it is expressly understood that the parties of the first part shall adhere strictly to the plans, drawings, and specifications, and to obtain from the architect all necessary explanations and instructions of the drawings and specifications; and in case of any disagreement between the parties hereto in relation thereto, the decision of the architect above named shall be final and binding on all parties hereto. * * * Eighth. It is further covenanted and agreed, by and between the parties hereto, that the said parties of the first part shall complete and finish the storerooms in said building, situated on Fifteenth and Curtis streets, so that the tenants may occupy the same for business on or before the 1st day of September, A. D. 1889, and that they will fully complete and finish said building, in conformity with said plans, drawings, and specifications, on or before the 1st day of November, A. D. 1889. And it is distinctly declared and understood by the parties hereto that the time mentioned above for the completion of said storerooms, and the final completion of said building, is a very important consideration in this contract, and of the essence thereof; and, in case of a failure to complete said stores at the time above named, the damages arising therefrom shall be liquidated and assessed at the sum of twenty-five dollars per day for each and every day said storerooms remain uncompleted after said 1st day of September, A. D. 1889, as aforesaid; and in case of a failure to complete and finish said building on said 1st day of November, A. D. 1889, the damages arising to said party of the second part shall thereafter be liquidated and assessed at the sum of twenty-five dollars per day that said building shall thereafter remain unfinished, which said sums shall be deducted from the amounts herein agreed to be paid to said parties of the first part, or may be collected by action against said parties.' And it is further provided in said contract that Charles might make any alteration he deemed proper, by adding to or deducting from the amount of work or materials, or by changing them from one grade or quality to another; and if the parties to the agreement could not agree as to the amount occasioned by any such change, then the architect should appraise the amount and value, and indorse said appraised sum on the contract, and it should thereby become binding on all the parties. Under this provision Charles elected to, and did, deduct from the amount of work to be done by Thompson & Tomlinson the plastering, and relet the same; also, the putting down of the basement floors, and relet such work to other parties. The installments as provided in the contract were paid, except the last, upon which $2,500 had been advanced.

This suit was instituted by the E. F. Hallack Lumber &amp Manufacturing Company against Charles, the owner of the building, Thompson & Tomlinson as the principal contractors, and the other parties as subcontractors. The pleadings are voluminous, but the principal issue, being the amount due the principal contractors, is presented by their cross complaint, and the answer of Charles thereto, and his counterclaim against them; he (Charles) claiming a deduction on account of damages arising from a failure on their part to complete the contract in the time and manner specified. The trial court made full and specific findings of the facts established by the evidence, among them the following: 'That the said defendants Thompson & Tomlinson substantially performed the contracts entered into by them with the defendant Charles, except as to the floors which were completed; but in a defective condition of floors, damages in the amount of $2,000 should be allowed defendant Charles. That the building in its entirety was not completed at time and date originally required and stipulated by the terms of the contract, but that such requirements as to time and date of completion were waived by conduct on the part of the defendant Charles; and demurrage claimed on account of failure to complete in point of time was also waived by conduct on the part of the defendant Charles, and is disallowed.' It found that there was due Thompson & Tomlinson, after deducting the amount paid them by Charles, and the amount paid to other parties for plastering and the basement floors, and the $2,000 for the defective flooring, the sum of $23,671.64. It further found that there was due to the subcontractors, from Thompson & Tomlinson, in the aggregate, the sum of $22,961.05; that there was due from Charles to Groth & Co., in addition to the amount...