City of St. Louis v. Parker-Washington Co.

• Decision Date: 22 May 1917
• Docket Number: No. 16684.,No. 16683.,16683.,16684.
• Parties: CITY OF ST. LOUIS v. PARKER-WASHINGTON CO. et al.
• Court: Missouri Supreme Court

196 S.W. 767

271 Mo. 229

CITY OF ST. LOUIS v. PARKER-WASHINGTON CO. et al.

No. 16683.

No. 16684.

Supreme Court of Missouri. In Banc.

May 22, 1917.

Motion for Rehearing Denied June 30, 1917.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by the City of St. Louis, to the use of the Carroll-Porter Boiler & Tank Company, against the Parker-Washington Company and another. From judgment in favor of plaintiff, both parties appeal. Affirmed.

S. Mayner Wallace, Wm. R. Orthwein, and Shepard Barclay, all of St. Louis, for appellants. Judson, Green & Henry, of St. Louis, for respondent Carroll-Porter Boiler & Tank Co.

GRAVES, J.

In the lower court this case was first heard by a referee. This referee made a complete finding of facts, and stated his conclusions of law. Such referee recommended judgment for relator in the sum of $27,513.85, and to his report both parties filed exceptions. Relator's exceptions were by the court sustained in part and overruled in part. Defendants' exceptions were overruled in toto. Both sides have appealed.

The court gave judgment for relator in the sum of $38,441.28. The record recites that the reference was by consent, the order therefor reading:

                                   "Tuesday, January 5th, 1909
                

"Now at this day come the parties, plaintiff and defendants, by their respective attorneys, and consent and agree that this cause may be referred to Francis J. McMaster, Esq., whereupon it is ordered by the court that this cause be, and the same is hereby, referred to Francis J. McMaster, Esq., to try all the issues involved therein, and to report his findings and proceedings to the court with all convenient speed."

The referee has with great care outlined the case and the pleadings therein, and this we borrow from him:

"This suit was instituted by plaintiff to recover from defendants the unpaid balance of the contract price for certain materials furnished defendant, the Parker-Washington Company under a contract with it, to be used by it in constructing what is known as a `flow line' for the city of St. Louis, from the Chain of Rocks to the Baden pumping station, under and in pursuance of a contract between said city and said defendants, and in pursuance of Ordinance No. 21807 of said city, approved March 24, 1905.

"Petition.

"Plaintiff's petition shows that this suit was instituted in the name of the city of St. Louis to the use of Carroll-Porter Boiler & Tank Company against the Parker-Washington Company and the Title Guaranty & Surety Company of Scranton, Pa.; the latter company being the company that executed the bond required by the city of St. Louis from the Parker-Washington Company for the faithful performance of its contract with the city.

"The petition further alleges that the Carroll-Porter Company was incorporated under the laws of the state of Pennsylvania, and that the surety company was incorporated under the laws of the state of Pennsylvania, and further alleges, by an amendment, that the surety company `has been duly authorized to do business in this state under the statutes relating to foreign insurance companies'; that on May 2, 1905, the Parker-Washington Company made a contract with the city of St. Louis, hereinafter called `the city,' under its charter and ordinance to construct and lay certain piping, complete in place, from Chain of Rocks to Baden pumping station; that the work was to be done under the direction and subject to the inspection of the Water Department of the City, the consideration being $478,000, which was to be paid on monthly estimates, less 15 per cent. on the contract price, which latter was to be paid after final acceptance by the City; that the Parker-Washington Company made and delivered to the City its bond signed by said surety company in the sum of $126,660.62 for the faithful performance of its contract, and would, when the work was completed, pay the proper parties all amounts due for material and labor used; and the bond further provided that it could be sued on in the name of the City of St. Louis to the use of any materialman; that, after the contract was awarded the Parker-Washington Company, the latter on the 22d day of May, 1905, made a contract with the Carroll-Porter Company to furnish and deliver the pipe and appurtenances called for by the contract between the Parker-Washington Company and the City in such quantities as and when called for by the Parker-Washington Company; that this contract referred to the contract between the Parker-Washington Company and the City, and provided that the Carroll-Porter Company should complete the delivery of the entire requirement of the `said pipe and appurtenances'; that it was to be paid by the Parker-Washington Company monthly the sum of $14.25 per linear foot of pipe delivered, free on board cars at waterworks in Baden, the payments to be made on the 10th of the month, for pipe delivered the previous month, save 15 per cent. of the amount, which latter was to be retained until 15 days after final acceptance of the pipe in place by the City, when this 15 per cent. was to be paid; that plaintiff has fully complied with all the terms and conditions of its contract; that the construction of the pipe and appurtenances was superintended at its factory by inspectors of the water department of the city, and that the same had been constructed, delivered, and accepted by the Parker-Washington Company (hereinafter designated as defendant) and the City as in full compliance with the plans and specifications of the principal contract; that the work under the principal contract had been completed and accepted by the City and the total amount due defendant was paid in full by the City on the 17th day of April, 1908; that, although defendant had been paid in full and more than 15 days had elapsed since such final payment, plaintiff had not been paid the amount due it for material and labor furnished and employed therein; that $11,644.81 was due from defendant to plaintiff prior to the acceptance of the work by the City, which has not been paid, though often demanded, and in addition 15 per cent. which had been reserved until the acceptance of the work by the City and 15 days thereafter amounting to $33,710.79 had not been paid, although the period of 15 days had expired, making a total of $45,357.50 due plaintiff from defendant, and which was unpaid although often demanded; that the Title Guaranty & Trust Company, surety for defendant, had changed its name since executing the bonds of the Title Guaranty & Surety Company of Scranton, Pa., and was thus impleaded in this cause; that there had been a breach of said bond by defendant and the Surety Company for the faithful performance of the principal contract, in that defendant had failed to comply with the terms of the principal contract by refusing to pay plaintiff the amount due it under contract for materials furnished and labor employed in its performance, and then claimed that a cause of action had accrued to the City of St. Louis to the use of the Carroll-Porter Boiler & Tank Company against defendant and the Title Guaranty & Surety Company, and asking judgment for the penalty of the bond, the sum of $12,660.62, and execution for the amount due plaintiff, to wit, the sum of $45,357.50, with interest and costs.

"Answer of Defendant.

"The Parker-Washington Company's answer admits its incorporation and that of the surety company as alleged in the petition, and, further answering, alleges:

"(1) That the City of St. Louis has no warrant or authority to bring or maintain this action, and that it has no legal capacity to maintain this action in the manner and form that the same is brought.

"(2) That the Carroll-Porter Boiler & Tank Company has no legal capacity to maintain this action, because it has never been licensed or authorized to do business in this state.

"(3) That there is a defect of parties plaintiff, because the Carroll-Porter Company is not authorized, empowered, or licensed to bring or maintain this action in this state, and for these reasons asks to be discharged with its costs.

"(4) Defendant then pleads a counterclaim and set-off against the plaintiff, and alleges therefor the contract between defendant and the tank company entered into on the 22d day of May, 1905, whereby the plaintiff, the tank company, agreed to furnish and supply the pipe, together with all incidentals and appurtenances (not including valves), necessary to complete the contract made by defendant with the City for building, complete in place, the flow line, and that the appurtenances included angle irons, cast steel manhole covers and saddles with necessary extensions, and the 36-inch and 12-inch flange connections, and all field rivets, the pipe to be made in sections and with curves, the total amount of which was to be about 19,634 linear feet, according to the plans and specifications of the contract between defendant and the City, which were made a part of the contract between plaintiff and defendant, and that said pipe with all appurtenances was to be delivered by plaintiff to defendant f. o. b. cars at waterworks, Baden station, St. Louis, Mo.; that according to the agreement plaintiff was to deliver these materials in such quantities and as and when called for by defendant, at a rate not less than 100 linear feet per day, if required, and to begin delivery 45 days after date of contract, and complete the delivery within 8 months from said date; that plaintiff agreed to pay defendant $25 per day as liquidated damages for each and every day it was in default; that plaintiff guaranteed and warranted that the materials furnished should stand every requirement and test of the water commissioner of the City and be in accordance with the contract between the City and defendant, and would hold defendant harmless and indemnify it against claims and demands of every person on account of any labor or materials furnished thereunder, or of the...