Christopher & Simpson A. I. & F. Co. v. E. A. Steininger C. Co.

• Decision Date: 12 July 1918
• Docket Number: No. 15138.,No. 15114.,15114.,15138.
• Citation: 205 S.W. 278,200 Mo. App. 33
• Court: Missouri Court of Appeals
• Parties: CHRISTOPHER & SIMPSON ARCHITECTURAL IRON & FOUNDRY CO. v. E. A. STEININGER CONST. CO. et al. (two cases).

205 S.W. 278

200 Mo. App. 33

CHRISTOPHER & SIMPSON ARCHITECTURAL IRON & FOUNDRY CO. v. E. A. STEININGER CONST. CO. et al. (two cases).

No. 15114.

No. 15138.

St. Louis Court of Appeals. Missouri.

July 12, 1918.

Rehearing Denied July 24, 1918.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by Christopher & Simpson Architectural Iron & Foundry Company against E. A. Steininger Construction Company and Mound City Ice & Cold Storage Company. From the judgment rendered on report of referee, plaintiff and last-named defendant appeal. Reversed, and cause remanded with directions.

Henry T. Ferriss, of St. Louis, for Christopher & Simpson Architectural Iron & Foundry Co. Lyon & Swarts, of St. Louis, for Mound City Ice & Cold Storage Co.

ALLEN, J.

This is an action instituted May 15, 1907, by a subcontractor, Christopher & Simpson Architectural Iron & Foundry Company, against the general contractor, E. A. Steininger Construction Company, and the owner, Mound City Ice & Cold Storage Company, for a balance alleged to be due plaintiff from the defendant contractor for the reasonable value of labor and materials furnished in the erection of a certain building and for a lien therefor against the property. The parties to the record are all corporations. The issues arise upon the petition, the first amended answer of the defendant owner, the third amended answer and counterclaims of the defendant general contractor, and a reply, including answers to the counterclaims.

The petition avers, in substance, that on or about July 26, 1906, defendant E. A. Steinlager Construction Company (hereinafter termed the contractor) entered into a contract with its codefendant, the Mound City Ice & Cold Storage Company (hereinafter referred to as the owner), wherein the contractor agreed to erect an "ice storage house" for its codefendant on certain described property owned by the latter in the city of St. Louis; that thereafter, at the request of the contractor, plaintiff furnished the materials and performed the work and labor in installing the iron and steel work required in the erection of such building, as described in a "bill of particulars," aggregating $8,646.48. It is averred that the deliveries of the material were completed on October 8, 1906, and the installation thereof completed on October 22, 1906, excepting certain work done upon a door, required to be done under the contract, which was completed on November 14, 1906; that said work and labor were reasonably worth the prices charged therefor and actually entered into the building, and that the claim accrued and became due November 14, 1906. It is further averred, among other things, that on February 11, 1007, plaintiff gave the defendant owner written notice of its claim and its intention to file a lien therefor, and that the lien account sued upon was filed on February 21, 1907. Giving credit for certain payments made plaintiff by the defendant contractor on account, one of which is alleged to have been made after the filing of the lien account, viz. on March 15, 1907, and alleging that on the last-mentioned date demand was made for the payment of the balance due, to wit, $3,047.68, and judgment is prayed against the defendant contractor for such sum, with interest from March 15, 1907, and that the same be declared a lien against the property.

The amended answer of the defendant owner admits that on July 25, 1906, it entered into a contract with its codefendant whereby the latter agreed to erect the building in question, and that "contemporaneously with the making of said contract" the defendant contractor entered into a contract with plaintiff whereby plaintiff agreed to install the iron and steel work required in the erection thereof, in the manner and within the time required by the contract between the defendants, and as shown by the plans and specifications of the architect. Then follows a general denial of all the allegations of the petition not specifically admitted.

The third amended answer of the defendant contractor admits that on or about July 26, 1906, this defendant entered into a contract with its codefendant herein by which this defendant agreed to erect the ice storage house mentioned. It is then averred that by said contract this defendant bound itself to have two "sections" of said ice storage house under roof and in such condition that the owner might install the refrigerating piping and do the insulation within 50 (which should be "55") working days from the date of the contract, and agreed to have the remainder of the building under roof and ready for like purposes within 65 working days from the date of the contract, and to have the entire building completed in all details within 80 working days from the date of the contract; and that this defendant agreed that, if it failed to complete the building "to the various stages" mentioned, it would pay its codefendant, as liquidated damages, $100 per day for each day beyond the time set for such completion. And by its answer this defendant "further admits and states" that on July 26, 1906, it entered into a written contract with plaintiff, whereby the latter agreed to furnish and install the iron and steel work required in the erection and completion of the ice storage house, and to complete and "have set in position" all of the same within 50 days from July 26, 1906; and that plaintiff agreed that its said agreement and undertaking should be and become a part and parcel of the contract between this defendant as general contractor and its codefendant as owner. And it is averred that plaintiff agreed to commence at once upon the work to be done by it under its contract, and to complete the same in such time as to cause no delays to this defendant, the general contractor, or any other subcontractor on the building; and agreed that any damage or liability for which this defendant, as general contractor, should "be held or become liable for in consequence of the neglect" of plaintiff to install and complete the work to be performed by it within 50 days from the date of its contract should be deducted from the contract price of $8,600 which plaintiff was to receive for performing and completing its contract. And this defendant denies "that the plaintiff performed its said contract, or did all the work, or furnished all the materials set out in the petition, or did said work or furnished said materials at the time or date set out in the petition," and denies each and every allegation of the petition, not specifically admitted. Further answering, this defendant states that plaintiff is not entitled to recover for the work, labor, and materials sued for in this action, for the reason that plaintiff breached its contract by failing to complete its work within the time limited therein, and because by the terms of its contract any loss or damage resulting to this defendant from such delay is to be deducted from the amount to which plaintiff would otherwise be entitled. It is averred that work which this defendant was required to do in order to complete the building could not be done until the iron and steel work was installed; and that although the building was ready to receive plaintiff's work, and plaintiff was notified thereof, plaintiff did not commence its work thereupon until 45 days after July 26, 1906, and did not install the iron and steel work in time to enable this defendant to complete the building in its various stages within the time limit fixed by its contract with its codefendant; that, although this defendant repeatedly notified and urged plaintiff to observe the terms of its contract in this respect, plaintiff failed "for more than forty-five calendar days, or more than thirty working days after the expiration of the fifty days from July 26, 1906," to install and complete the iron and steel work on the building, whereby plaintiff became liable to pay the damages thereby sustained by this defendant, as stipulated and fixed in the contract between the latter and the owner. And it is averred that, solely because of the delay thus caused by plaintiff, this defendant was unable to complete and deliver the building in its various stages within the time limit fixed by its contract with the owner, and that because of such delay defendant owner has withheld from this defendant and now retains the sum of $3,000, which, but for such delay, would be due this defendant under its contract with the owner; and that, by reason of the said breach by plaintiff of its contract, this defendant has sustained loss and damage to the amount of $3,000. It is averred that by reason of plaintiff's breach of its contract no amount or sum of money whatever is due plaintiff on its cause of action "until and unless the amount or damage * * * to which this defendant is entitled has been ascertained and deducted from the amount to which plaintiff would be entitled had it performed and completed its contract." And it is further averred that the account set out in the petition, and on which plaintiff claims a mechanic's lien, does not give credit for the deduction to which this defendant is entitled, and is therefore not a just and true account of plaintiff's alleged claim. This defendant then sets up a counterclaim for the loss and damage alleged to have been sustained by it by reason of plaintiff's alleged breach of its contract, mentioned above, praying judgment thereon for the sum of $3,000 and interest. This defendant likewise set up two further counterclaims, one for $47.60 for labor and material alleged to have been furnished upon the building by this defendant, which it was plaintiff's duty to furnish, and the other a so-called "equitable counterclaim." These two counterclaims were disallowed below, and, since they are not involved in the appeals pending herein before us, they need not be further noticed.

Plaintiff filed a reply to the third amended answer of the defendant contractor, denying...