Detroit Heating & Lighting Co. v. Stevens

• Decision Date: 10 March 1898
• Docket Number: 875
• Citation: 16 Utah 177,52 P. 379
• Parties: DETROIT HEATING & LIGHTING COMPANY, APPELLANT, v. SIDNEY STEVENS, RESPONDENT
• Court: Utah Supreme Court

52 P. 379

16 Utah 177

DETROIT HEATING & LIGHTING COMPANY, APPELLANT, v. SIDNEY STEVENS, RESPONDENT

No. 875

Supreme Court of Utah

March 10, 1898

Appeal from the Second district court, Weber county. H. H. Rolapp Judge.

Action by the Detroit Heating & Lighting Company against Sidney Stevens on a contract. Defendant had judgment, and plaintiff appeals.

It appears from this record that on November 11, 1890, the plaintiff, a corporation engaged in manufacturing and selling heaters and other apparatus in Detroit, Mich., agreed to furnish and erect for defendant in his carriage and implement building at Ogden, Utah, a hot-water heater, with all the usual and necessary attachments and connections. The contract contained the following provisions: "Upon notification from us that the work herein specified is complete, it shall be promptly inspected, and accepted or rejected, so that our man, while still on the premises, may, without delay complete it, or remedy any defect that may appear, after which you are to give said man written acceptance of the work herein specified, it being agreed that such acceptance shall not be deemed a waiver of our guaranties. Should you, or your agents, contractors, or others acting under them, desire to use any part of this apparatus during its construction, prior to its inspection and acceptance, permission is hereby granted under the following conditions: that the apparatus is to be operated entirely at the risk and expense of the owner and delivered to us again in as good condition as found. The owner shall provide an adequate and properly located chimney flue, introduce water to the basement within five feet of boiler, and provide a suitable place, with a good brick and cement foundation, for the heater to stand in basement or cellar, so that the required circulation shall be above the heater. When the apparatus herein proposed to be furnished is completed in accordance with the conditions hereof, we guaranty that it shall permit water to circulate in all parts without pressure, excepting weight of water contained in apparatus, and that it shall be capable of warming all rooms mentioned therein, when the outside temperature is at zero provided our printed instructions for the management of the heater are followed, and that good coal of suitable size is used. If, after this apparatus shall have been accepted by you, any part thereof constructed by us under this proposal shall fail to accomplish the guaranty herein contained by reason of any defect in the same, we agree to remedy such defect at our own cost, within a reasonable time after receiving written notice of such defect. The sum of seventeen hundred and ninety ($ 1,790) dollars to be paid in full on completion of said contract, and the job in running order to the acceptance of purchaser within ten days after completion." It further appears that plaintiff erected the heater in the defendant's building in January, 1891 that the defendant paid on the same $ 1,371.48, as follows: On January 30, 1891, $ 500; December 15, 1891, $ 556.72; December 15, 1892, $ 294.76; December 15, 1892, $ 10; January 30, 1893, $ 10. Of this amount, $ 323.80 was freight paid for plaintiff at its request. It also appears that defendant at different times made objections to the heater, and only used it at times. Both plaintiff and defendant made changes in the apparatus at considerable cost until September 24, 1894, when the building in which it was, burned, and the defendant not only then refused to make further payment, but notified the plaintiff to remove it from his premises, and to return the money paid upon it. The plaintiff then filed its complaint, which alleged, among other things, that it had performed the contract on its part, and that the defendant owed $ 418.52 upon the price, with interest. The defendant answered, denying performance on the part of the plaintiff, and alleging performance on his part, and denying the indebtedness claimed, or any part of it. Defendant also filed a cross complaint, in which he averred the same contract, and alleged the payment of the $ 1,371.48 thereon to the plaintiff, and a breach by it, and damages by reason thereof in the sum of $ 3,721.48, with interest, specifying the items constituting the amount. Upon the trial of the case by the court the defendant elected to rely upon a rescission of the contract, and asked judgment against plaintiff for the amount paid on the contract, with interest. The court found for the defendant in the sum of $ 1,627.47, the sum paid, with interest, and gave judgment for the amount, to which the plaintiff excepted, and from which it has taken this appeal.

Reversed and remanded.

J. D. Murphy, for appellant.

L. R. Rhodes, for respondent.

ZANE, C. J. BARTCH and MINER, JJ., concur.

OPINION

ZANE, C. J. (after stating the case):

In view of the cause of action set out by the defendant in his cross complaint, and of the conceded facts of the case, and those as to which there is no room for controversy, did the court err in finding the apparatus was not accepted, or that the contract was rescinded, and in giving judgment against the plaintiff for $ 1,627.47, the amount paid on the contract and interest? The defendant, in his cross complaint, admits the contract set out in the plaintiff's complaint, and alleges that he paid the $ 1,371.48 on the contract, but alleges a breach by the plaintiff in not furnishing a complete and perfect heater as it required, alleges damages in the sum paid, and other damages specified aggregating the sum demanded. A rescission or forfeiture of the contract is not alleged. The cross complaint is for damages for its breach. No election to rescind and cut off plaintiff's rights is averred. Where an action is based upon the rescission of a contract and a forfeiture of the rights of a party to it, the election to rescind must be specifically and clearly averred. After a contract has been recognized and acted upon by the parties to it, the law does not favor a rescission by one of the parties, and the forfeiture of the rights of the other. We will, however, consider the judgment of the court with respect to the facts. Albert D. Ward testified that he was a hot-water engineer and steam fitter; that he erected the heating plant in question in the winter of 1890 and 1891, according to plans and specifications contained in the contract, and finished it in January; that he made a test of it by filling it with hot water, and firing it; that it was not defective to his knowledge; that it was changed after it was completed by putting a brick smoke flue in place of a galvanized iron one; that it was done at the request of the plaintiff; that this was done for the reason that defendant had covered the iron one with asbestos plaster, and did not have the hangers strengthened, and it fell; that Stevens also used a very poor quality of soft coal that would clog up the heater and smoke pipe. The defendant testified that Mr. Ward...